Brexit: Environmental Standards
 - Question

Baroness Miller of Chilthorne Domer: To ask Her Majesty’s Government what measures they will put in place following Brexit to safeguard environmental standards and biodiversity.

Lord Gardiner of Kimble: My Lords, we already have domestic law that safeguards the environment. The great repeal Bill to be introduced in the next parliamentary Session will incorporate EU law relating to environment and biodiversity into domestic UK law. The UK is also a party to around 30 international environmental agreements and treaties in its own right. We are bound by the obligations that they contain; this will not change on exit from the EU.

Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for his reply. I am sure that he appreciates how much the farming policies of this country have an influence on our environment—everything from the quality of water to the state of our wildlife and our soil fertility. At the worst, can he envisage a point where we have a trade deal with the US, with all its implications for food production, and a farming scenario where we would have a countryside of prairies interspersed with feed-lots? Will the Government therefore combine their 25-year farming strategy with their 25-year environmental strategy? We have only one land area, and it would make great sense for those two to be combined.

Lord Gardiner of Kimble: My Lords, the noble Baroness is absolutely right that agriculture plays a crucial role in our environmental policy: 70% of our land is farmed, so it is very important. That is why the two forthcoming Green Papers for consultation, to which we look forward to many responses, are about enhancing and handing over a better environment than the one we have inherited, including a vibrant agricultural system. As I have said before to your Lordships, I believe that both are compatible.

Baroness Jones of Whitchurch: My Lords, I want to push the noble Lord on the Question that was just asked. Will he guarantee to the House that any future trade deal with the United States will be based on our existing high environmental standards, which will not be sacrificed in some sort of grubby trade deal further down the line? This is really important to the House, and we have debated it many times.

Lord Gardiner of Kimble: My Lords, obviously I am not privy to what will be in the forthcoming negotiations, but what we have said and will continue to say is that we are not prepared to see a diminution of our environmental standards. We are subject to obligations and treaties, and we wish to hand over a better environment than the one we have inherited.

Baroness Fookes: My Lords, is our departure from Europe not also a great opportunity to support and encourage our very important horticultural industry?

Lord Gardiner of Kimble: My Lords, I am taken with what my noble friend has said. Clearly, this provides an opportunity for a boost in domestic horticultural trade. I am very keen, for instance, on Grown in Britain, in terms of our trees. We have, unfortunately, imported many pests and diseases over the years, so I think that this provides us with a great opportunity, and I would encourage domestic tree production.

Bishop of St Albans: My Lords, we are all reassured that EU environmental legislation is going to be enshrined within UK law, but we will probably be coming out of the single market and entering into a series of trade negotiations with, for example, the United States. Trade negotiations are just that: we will have to make compromises. Will the Minister assure the House that we will not be producing our food to lower standards or consuming food that has been produced more cheaply by undercutting our industry—for example, chicken washed in chlorine and beef reared on growth hormones?

Lord Gardiner of Kimble: My Lords, as I said before, it is important to note that this country has had a very long history of being in advance even of EU law. In fact, our Wildlife and Countryside Act 1981 was enacted a decade before the EU habitats directive. The whole direction of travel in this country has been to lead on these matters. We will be working hard in my department to ensure that there is no diminution in standards. We wish to encourage our farmers to produce the best food possible because brand Britain is about high animal welfare standards and high environmental standards.

Lord Cunningham of Felling: My Lords, will the Minister confirm that more than 1,100 individual pieces of European Union legislation affect Defra directly, so they are of enormous importance to the future of our agriculture and environment? It is clear that not all of this can be immediately transferred under the great Bill which we are promised by Ministers, but can the noble Lord guarantee that there will be no diminution or reduction in environmental and agricultural standards, to safeguard the environment in this country?

Lord Gardiner of Kimble: My Lords, I want to be absolutely categoric that the whole direction of travel on this is to enhance our environment. All that we are seeking to do, in our negotiations and considerations on the future, is about the brand of Britain as one of high animal welfare standards in the production of livestock and environmental protections. We have a very long and positive history on this.

Lord Willoughby de Broke: My Lords—

Baroness Parminter: My Lords—

Lord Hannay of Chiswick: My Lords—

Baroness Evans of Bowes Park: My Lords, we have not yet heard from the Cross Benches, so we shall hear from them.

Lord Hannay of Chiswick: My Lords, when we pass the primary legislation, if we do, on the great repeal Bill, how are we to know what effect that will have when we will not by then have agreed the terms of our trade and many other matters with the European Union?

Lord Gardiner of Kimble: As I say, because of the construction of our environmental protections which are part through domestic law and part through our EU law requirements, all of it is coming back so that it will be exactly the same continuum of laws relating to environmental protection. That is the whole point of the great repeal Bill, so there is certainty for the consumer, the producer and business.

Baroness Parminter: My Lords, the Minister referred to an upcoming consultation on the 25-year environment plan. Some matters that are not open for consultation are matters of principle. One of the principles in Europe has been that environmental protection has been maintained by the precautionary principle. Will the Minister guarantee that this Government will uphold the precautionary principle?

Lord Gardiner of Kimble: My Lords, as I have said, we wish and intend to leave the environment in a better position than the one we have inherited. That surely means that we will want a situation where we are advancing our protections rather than not.

Iran: Nazanin Zaghari-Ratcliffe
 - Question

Baroness Northover: To ask Her Majesty’s Government what action they are taking in relation to the case of Nazanin Zaghari-Ratcliffe, a British-Iranian dual citizen detained in Iran.

Baroness Anelay of St Johns: My Lords, the Government were very disappointed to hear the outcome of Mrs Zaghari-Ratcliffe’s appeal on 22 January. We continue to raise our strong concerns at the highest levels in both London and Tehran over the treatment and welfare of all British-Iranian dual nationals imprisoned in Iran. FCO officials are in regular contact with Mrs Zaghari-Ratcliffe’s family and we continue to do everything we can for the family.

Baroness Northover: My Lords, I thank the noble Baroness. Unlike Mr Trump, we seek improved relations with Iran, but here we have a young mother, a British-Iranian citizen, imprisoned after visiting her family there with her daughter—her daughter is solely  a British citizen. Surely the time has come for the UK to call for Mrs Zaghari-Ratcliffe’s release before she, her little daughter and her husband—who is here today with his own mother—suffer further.

Baroness Anelay of St Johns: My Lords, the suffering of the family can barely be imagined and throughout all this, regardless of some of the extraordinary claims made on the internet, we should remember that this is a loving father who simply wants his family to be reunited. I wholly respect that, which is why we are urgently seeking information on what further legal avenues are available to Mrs Zaghari-Ratcliffe. We undertake that the FCO will continue to offer support to the family, both here in London and in Tehran. We are working towards the positive resolution of this, because that is the right thing for us all to do.

Lord Lamont of Lerwick: My Lords, I first draw the House’s attention to my entry in the Register of Lords’ Interests, as chairman of the British-Iranian Chamber of Commerce and as the Government’s trade envoy to Iran. Is the Minister aware that I have raised this issue with the Iranian Government? I associate myself wholly with the Question that has been asked. Has the Minister noticed the statement by the President of Iran, the moderate President Rouhani, who has said that if Iran is to attract more investment and commercial engagement with the wider world, it needs to make people who visit Iran both welcome and safe? Is it not the case that this treatment of Nazanin not only is a tragedy for her but is harming prospects for investment and the future of the Iranian people?

Baroness Anelay of St Johns: My Lords, I entirely agree with every word that my noble friend has uttered.

Lord Alton of Liverpool: My Lords, in addition to the cruel and manipulative treatment of this family by the Iranian authorities, which were responsible for more than 1,000 executions in one recent year, including women and teenagers, is the Minister aware that predatory attempts have been made to extract money from Nazanin’s husband Richard by so-called intermediaries preying on their sense of desperation? Can the Minister add to what she told us a moment ago and say when our consular officials last saw Nazanin and also tell the House what she can about the other three British citizens who are being held in Iranian jails?

Baroness Anelay of St Johns: My Lords, I have read newspaper reports of the appalling attempt to gain money from the family, which the noble Lord has just described, but they are newspaper reports—I personally do not have details of that. It is a fact that those who are dual nationals face significant problems if they are detained in Iran, because we do not have consular access to them. We can ask, but we cannot insist—although it does not stop us continuing to ask. As recently as this Tuesday, my honourable friend Tobias Ellwood met Mr Ratcliffe to update him on what happened when Tobias visited Tehran earlier in January. Officials met the family recently and Tobias also met the family when he was in Tehran. Those meetings will continue, because our only intent is to resolve this issue in a positive way for the family.

Lord Collins of Highbury: My Lords, I appreciated what the Minister said in the Chamber last week in the debate that we had on this subject—I raised specific questions. I understand the Government’s commitment to do all they can in the circumstances, but the Minister said last week that we were awaiting the end of the judicial process before making any demands for Mrs Zaghari-Ratcliffe’s release. Can she reassure the House that when they are satisfied that the process has been concluded, we will immediately demand her release?

Baroness Anelay of St Johns: My Lords, one of our problems is in having information about the process itself, and when it has been resolved within the court system—in the debate, as the noble Lord will remember, I carefully declined to call it a judicial system and referred to it as a court system. As I said earlier, we are urgently seeking information on what further legal avenues may be available to Mrs Zaghari-Ratcliffe, and we will support the family through that process. The judiciary falls under the auspices of the Supreme Leader, and its shortcomings are evident: I choose my words very carefully, to be accurate. Those standing trial on political or politically-related charges are often denied proper access to a lawyer, which results in defendants lacking a proper defence during their trial. This is an appalling situation.

Lord Campbell of Pittenweem: My Lords, does the Minister understand the disappointment felt by those who supported the nuclear agreement and who have welcomed the improving relations between Iran and the United Kingdom? Would it not be unfortunate, to say the least, if the fact that this matter is not resolved should sully or undermine that emerging and improving relationship?

Baroness Anelay of St Johns: As so often, I agree with the noble Lord.

Baroness Butler-Sloss: My Lords, the child is, I understand, entirely a British subject. What are the Government doing about a British subject being held in Iran?

Baroness Anelay of St Johns: My Lords, we—I at this Dispatch Box and also colleagues in another place—have made it clear that we stand ready to facilitate the return of Gabriella to this country. She is indeed solely a British citizen, and we stand ready to assist if the family asks us to do so.

Brexit: Article 50
 - Question

Lord Spicer: To ask Her Majesty’s Government on what date Article 50 will be invoked.

Lord Bridges of Headley: My Lords, the Prime Minister has set out the timetable for triggering Article 50 by 31 March, and we remain committed to that timetable.

Lord Spicer: My Lords, I realise that a much more interesting Question I could have asked would have been, “Where is it all going to end?”—but the Minister would have found that rather difficult to answer. May I instead ask him this question: given that the British people have voted to come out of the European Union, and that the elected House of Commons has voted to begin the process, is there very much left for this House to do, other than to give safe passage to the Bill when it comes before us?

Lord Bridges of Headley: Actually, I think there is a considerable amount for this House to do, so I beg to differ. I am very grateful for what this House continues to do and has already done, both on the Floor of the House and in the considerable work that has been undertaken by your Lordships’ committees, on subjects ranging from acquired rights to fisheries and financial services, which has in a short time made a considerable contribution not just to the debate but to thinking in government. I applaud the work that has been undertaken; long may it continue.

Lord Kinnock: My Lords, the Government will have 24 months from the notification of departure under Article 50 in which they will have to negotiate that departure. They claim that simultaneously, in the same 24 months, they will secure, in their words, a comprehensive free trade agreement with the European Union. Is it not clear that these tasks are not achievable simultaneously in that short time, and that the claim of securing a comprehensive free trade agreement is a complete fiction?

Lord Bridges of Headley: I know that the noble Lord has a considerable amount of experience of the European Union. I would just gently point out to him two things. The first is, obviously, what the Article 50 process itself refers to, which is the means by which a nation that is leaving the EU will be negotiating the exit deal with reference to the new framework. That is clear in Clause 2 of Article 50. The second point, which I made last week at this Dispatch Box, is that, unlike other nations, we wish to enter a new partnership that reflects the fact that we have been a member of the EU, and remain a member of the EU, and as such our regulations and our laws are deeply embedded in our way of life. Therefore, whereas with other treaties being negotiated with the EU by non-EU countries, people are wishing to bring down barriers, we are wishing to ensure that barriers do not go up. That is why I think we should be entering into this in a different spirit from those other negotiations.
I also draw your Lordships’ attention to what Karel de Gucht, the European Union’s former Trade Commissioner, said recently. Essentially, he said that it does not take as long as five, six or seven years, as some are suggesting, and it could, technically, take a much shorter time.

Baroness Ludford: My Lords, given that the Secretary of State for Exiting the European Union said on Tuesday, in moving the Bill, that the central question on Brexit and Article 50 is,
“do we trust the people”,—[Official Report, Commons, 31/1/17; col. 818.]
and Liberal Democrats very much agree that that is the central question, can the Minister explain the Government’s refusal to trust the people with the final say on the Brexit deal in a referendum?

Lord Bridges of Headley: I am sorry but we come up against this immoveable object, which is the fact that the referendum took place, the people have decided that we wish to leave the European Union, and that is what we intend to do to honour the commitment in our manifesto. I hope only that the noble Baroness agrees with what her noble friend Lord Ashdown said so wisely on the night of the referendum: that when the British people have spoken, our task is to obey. It is only a pity that the noble Lord, Lord Ashdown, cannot agree with what he said then as opposed to now.

Lord Dykes: On a recent visit to Berlin, a puzzled and upset very senior German politician asked me, “Can I ask you a psychological question?”, and I replied, “Please do”. The question was, “Why are the English Europhobes so childish?”. I undertook to give him a reply as quickly as possible. Could the Minister help me with an answer to that question?

Lord Bridges of Headley: My Lords, I speak here on behalf of Her Majesty’s Government and therefore reflect the views of the Government. I believe that the approach that my right honourable friend the Prime Minister set out in her speech at Lancaster House was far from childish. It is a very mature approach to the challenge that lies before us, and that is what we will now embark upon.

Lord Forsyth of Drumlean: My Lords, did my noble friend notice that 500 MPs voted to begin the process of our exit from the European Union, of whom 346 had supported and campaigned for remain, putting the supremacy of the democratic mandate ahead of their personal views. Are they not an example to us all?

Lord Bridges of Headley: I happen to entirely agree with my noble friend on this point. As I have said before, the people have spoken and it is now for us to deliver on the instruction they have given us.

Lord Watts: My Lords, the Commission has said that it will consult the European Parliament on an ongoing basis when the Government finally start to negotiate with Europe over this matter. Will the British Government do the same with our Parliament?

Lord Bridges of Headley: As my right honourable friend the Secretary of State has made clear, and I have repeated many times, it would be completely unacceptable for the European Parliament to get more information than this House and the other place. That is an intention and a commitment that we absolutely intend to hold to.

Lord Grocott: Regarding parliamentary scrutiny, will the Minister confirm—it would be difficult not to, given what is on the Order Paper—that today alone there are two Oral Questions, one Statement and one  debate on the European Union? Just to reassure anyone who may feel that there is insufficient parliamentary scrutiny, will he put in the Library a list of all the Questions he has had to answer and all the Statements to which he has responded on this subject since 23 June? Perhaps we can at least then all agree that that is a pretty good record.

Lord Bridges of Headley: I will be delighted to do so. I am very much enjoying the experience of answering all these questions. I will be here again shortly after one o’clock to answer more.

Viscount Waverley: My Lords, did the Article 50 negotiation timetable take sufficient account of the fact that it will include two sets of continental summers, and perhaps even one for the Minister? Also, what will be the effect on the timetable of national elections during this two-year period?

Lord Bridges of Headley: My Lords, a number of national elections will take place during this period, not just in France and Germany. We have set out our negotiating position and we will set forth to achieve our aims in those negotiations. Obviously, the political situations in various European countries may change but our negotiating positions are as set out.

Brexit: Trade
 - Question

Baroness McIntosh of Pickering: To ask Her Majesty’s Government what assessment they have made of the comparative advantages, disadvantages and costs to the United Kingdom economy of (1) free trade agreements, (2) membership of the European Union Single Market, and (3) participation in the European Union Customs Union.

Lord Bridges of Headley: My Lords, we want the UK to have the greatest possible barrier-free trade with the European Union, delivered through a bold and ambitious free trade agreement. We continue to undertake a wide range of macroeconomic and sectoral analyses although, as agreed by Parliament, we will not publish anything that might harm our negotiating position.

Baroness McIntosh of Pickering: While I am grateful to my noble friend for his Answer, will he address the Question and the information that I seek in it? The Government are asking this House and the other place to take an awful lot on trust. Given that our main exports are in services, how confident is he that we will reach agreement on financial services, for example, within two years of our having left the European Union?

Lord Bridges of Headley: On the first point, I have little further to add. The Government have clearly said—I answered on it a moment ago—that, as the negotiations continue, we will continue to provide to this House and the other place what information we  can without undermining our negotiating position. That is not only the right thing to do, but the right thing if we are to build the national consensus that I said at the start we wished to build as we go forward. On my noble friend’s point about financial services, which is a very valid one, I would like to think that we are moving into a slightly new era as regards the understanding of the challenges and issues we face. There is a greater understanding of the mutual benefit that will be achieved if we come to an understanding with our European partners on financial services—not only to avoid a cliff edge in these negotiations, but to ensure that European companies and European Governments continue to have access to the global capital markets and the wonderful services provided in the City.

Baroness Kramer: My Lords, the Government will be very aware that in the Korn Ferry survey of FTSE 100 chairmen, 88% are convinced that, as it has been decided to leave the single market and the customs union, no trade agreement could possibly provide the current level of access. Does the Minister accept that consensus is now growing that, under the best terms we can get, we will see a drop in exports to the EU of something like 22%—nearly a quarter—and that no deal with the United States, no matter how favourable, could do more than claw back a very small portion of that loss?

Lord Bridges of Headley: I hope the noble Baroness will forgive me, but she is approaching this from a somewhat pessimistic point of view. I approach it from a more optimistic and ambitious point of view. I believe that the United Kingdom has a very strong economic record on which we can build. I believe that we already have fantastic networks, right across the world, on which we can also build. Therefore, while I understand the challenges that lie ahead, I believe that when we put our mind to it and approach it in the way that my right honourable friend the Prime Minister has set out, there is no reason to take the somewhat pessimistic approach that the noble Baroness has outlined.

Lord Pearson of Rannoch: My Lords, what do the Government think of the latest Civitas research, which can find no discernible benefit from our membership of the EU single market and customs union since we joined it? Is it not also true that the EU needs our free trade very much more than we need its? Is it not also the single market that inflicts Brussels overregulation on the 90% of our economy which does not sell into it, and which has stopped us doing free trade deals with the markets of the future? Is not the single market a pretty good disaster?

Lord Bridges of Headley: There are a number of questions wrapped up in that. From what my right honourable friend the Prime Minister set out in her thoughtful speech at Lancaster House, I shall pick up one point. There are aspects of the customs union that we do not wish to be part of, which restrict our ability to strike free trade agreements with non-EU countries. However, there are aspects of the customs arrangements  that exist which we wish to preserve. We wish to try to ensure that there remains frictionless trade across the EU, as far as possible.

Lord Howell of Guildford: My Lords, when it comes to assessing the single market, as suggested in this Question, has my noble friend noticed that the Visegrad four countries—and, indeed, several other east and central European countries—are in a state of considerable dissent and questioning about the structure, character and future of the single market? Are we in touch with those Governments and those countries?

Lord Bridges of Headley: My noble friend makes a very good point, as always. Yes, we are in touch with those countries. We are well aware of the issues bubbling around throughout Europe about the future of the single market. All I say is that the British people decided on 23 June to leave the European Union and therefore the course is the one that the Prime Minister has set out.

Lord Lennie: Can the Minister tell us how much of a fist-fight the Government are preparing for to protect their position on the customs union?

Lord Bridges of Headley: I am sorry to say that I will not start commenting on language such as “fist-fight”. It does not necessarily augur well for creating the best tone for the negotiations that lie ahead. I will say only that we are determined to protect and strengthen the competitiveness of the United Kingdom economy.

Lord Elton: My Lords, will my noble friend reinforce what he just said in reply to the Opposition Front Bench? Would it not be a good thing, in the conduct of these debates, if it was recognised that we are preparing not for a battle but for a negotiation?

Lord Bridges of Headley: I absolutely agree with my noble friend, and I will go somewhat further. It is absolutely in our mutual interest—both that of our country and of the countries of the European Union—that we not only come to an agreement on the issues before us but do so mindful of the fact that for generations to come, just as for generations past, this country has faced similar challenges to those faced by countries right across Europe. We therefore need to be in a position to continue to co-operate and collaborate with our European partners in the years and decades ahead.

Lord Harrison: My Lords, has the Minister read the House of Lords report on EU financial services, which fears that New York may predominate in the future as the global financial services centre—including, of course, those services which will gravitate to Frankfurt and Paris?

Lord Bridges of Headley: I have seen it, and it is clear that although some thought that it was a zero-sum game between London and the capitals of Europe, that is not strictly true. However, I point to what I said at this Dispatch Box last week—that there is a growing recognition, not just in this country but in others, that London will remain a very important financial centre, no matter what happens.

Business of the House
 - Motion on Standing Orders

Moved by Baroness Evans of Bowes Park
That Standing Order 40(4) (so far as it relates to Thursdays) and (5) be suspended until the end of the session so far as is necessary to enable notices and orders relating to Public Bills, Measures, Affirmative Instruments and reports from Select Committees of the House to have precedence over other notices and orders on Thursdays.
Motion agreed.

Business of the House
 - Motion on Standing Orders

Moved by Baroness Evans of Bowes Park
That Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with on Thursday 9 February to enable the Commonwealth Development Corporation Bill to be taken through its remaining stages that day.
Motion agreed.

Digital Economy Bill
 - Committee (2nd Day)

Relevant documents: 11th and 13th Reports from the Delegated Powers Committee

Baroness Pitkeathley: My Lords, it may be for the convenience of the House if those noble Lords who wish to leave do so before I call the next amendment.

  
Clause 15: Internet pornography: requirement to prevent access by persons under the age of 18

Amendment 54B

Moved by Baroness Jones of Whitchurch
54B: Clause 15, page 18, line 25, at end insert—“( ) the overarching duty of care of internet service providers and ancillary service providers and their responsibility to ensure that all reasonable steps are taken to ensure the safety of a child or young person involved in any activity or interaction for which that service provider is responsible.”

Baroness Jones of Whitchurch: My Lords, we all share a common purpose in wanting the new age verification process in Part 3 to be robust, trusted and effective. It is of course vital that we put in place powers to protect children from viewing inappropriate pornographic material, and we have rehearsed the arguments as to why it is important many times before in the House. We therefore believe that there should be an overriding duty of care on internet service providers and ancillary service providers to keep children and young people safe when using these sites.
The details of how this duty should be applied need to be subject to further consultation, which is what our Amendment 54B seeks to achieve. However, more substantially, we are concerned about the scale and the scope of the regulatory functions in the Bill, which to our mind have not been thought through and were not given sufficient scrutiny in the Commons. This was not helped by the fact that substantial new clauses were added to the Bill late on in the process which considerably extend the powers of the age verification regulator. The result is that Part 3 feels very much like a work in progress, with many of the usual checks and balances unresolved.
This was identified by the Constitution Committee and the Delegated Powers and Regulatory Reform Committee which, as we know, raised a number of specific concerns that we will address in later amendments. By way of example, the Constitution Committee stated:
“We question whether the House can effectively scrutinise the Bill when its scrutiny is impeded by the absence from the face of the Bill of any detail about the operation of the proposed age-verification regime”.
We agree with that point and we have concerns about the whole regulatory structure as it is currently set out in Part 3. That is what Amendment 54D seeks to address.
The amendment in the name of the noble Baroness, Lady Howe, specifies that the regulator should be the British Board of Film Classification, and it has been widely assumed that it would take on a similar classification role for online to that which it already carries out for offline. But the new, expanded role set out in Part 3 has much more extensive powers to follow up those who fail to apply age verification filters with fines and ultimately with the blocking of their sites by internet service providers. We believe that these functions are separate and should be carried out by a separate regulator. Indeed, when we recently met the Minister, Matt Hancock, he said that Ofcom was in a better position than the BBFC to handle the financial penalties proposed.
In addition, there is a need to specify who will carry out appeals and to ensure that this is a separate, independent organisation and not one that is appointed by the regulator. This point was raised by the Delegated Powers Committee and again we have tabled separate amendments on it that will come up later. Finally, we would argue that there needs to be effective oversight and supervision of the new regime to ensure proper governance and value for money. Arguably, Ofcom rather than the Secretary of State should have a role in holding both the classification and the enforcement agencies to account, as well as reporting to Parliament from time to time on progress. But of course Ofcom cannot do everything, which is an additional reason why we believe that we need to take time to allocate the different layers of responsibilities correctly.
No doubt other noble Lords, like ourselves, have received over the past few weeks representations from many bodies providing internet service provision, payment and ancillary services. They have raised concerns about the new powers in the Bill and how they will work in practice. Indeed, one of the ISPs went as far as to say that it was so concerned that it was going to redraft the whole of Part 3—so there is a major concern about how the powers are to be allocated. This is why we  believe that it is important to get this right by taking more time to consult on the role and functions of the regulator or regulators and to bring a clearer set of proposals back to both Houses. Amendment 54D would achieve this objective.
We believe that we need to take extra time to get this right. It should not be left to the Secretary of State and the eventual system for protecting children, which is something we all agree with, will be much more robust as a result. I beg to move.

Lord Ashton of Hyde: My Lords, with the permission of the Committee, it may be helpful if I say a few words before other noble Lords make their contributions in order to help the rest of our debate on this part of the Bill and to put on record the Government’s position on a key issue that we will be debating today.
The BBFC is going to be given powers in the Bill to give notice to payment service providers and ancillary service providers under Clause 22 and to ISPs under Clause 23 of websites that have inadequate age verification as well as prohibited material. Many noble Lords have raised concerns with me about the scope of what amounts to “prohibited material”, so let me put on record what I have been telling those noble Lords in the many meetings we have had. The Government disagree that “prohibited material” should be excluded from the regulator’s powers. We must not unintentionally legitimise all types of pornographic content as long as age verification controls are in place. Extreme pornography can involve dangerous content. The current definition of “prohibited material” in the Bill would bring parity with the offline world—material that would not be classified by the BBFC, including material that is in breach of criminal law.
The Government’s intention is to protect children from harmful content. We have listened to the arguments that in doing so, the drafting of the Bill may have unintentionally extended the powers of the regulator too far. We all share a common goal of keeping children safe and the Government will ensure that, in achieving this aim, we have a proportionate and fair impact on others who enjoy the freedoms and equalities that are important to everyone. So I can commit that we will give this further consideration in order to reach a conclusion that this House agrees is a satisfactory way of meeting our aims of protecting children from harmful pornographic content. I will be very happy to discuss this with interested Peers before Report.

Baroness Howe of Idlicote: My Lords, as I said at Second Reading, I am pleased to be speaking today on a subject that I have regularly brought before your Lordships’ House over recent years in my several online safety Bills—the importance of protecting children online, which is very much today’s subject. I have tabled my probing Amendment 55 so that the Government can set out their plans for which organisations will act as the age verification regulator for which sections of this Bill, as this is crucial to ensure the child protection provisions of Part 3 are successfully implemented.
My amendment would designate the British Board of Film Classification as the age verification regulator for the whole of this process. I know that many in this House and the other place were delighted to hear the Government’s announcement that the BBFC will be the notification regulator for Part 3, a position for which it will be formally designated later this year. I am sure we can all agree that it will bring a level of expertise to that role which will be really invaluable. The use of the term “notification” regulator, however, suggests that the BBFC will provide only part of the regulatory function and that another kind of regulator will have a role to play. Indeed, this was backed up by the BBFC, which stated in its evidence to the Public Bill Committee in another place that it did not intend to have any role in enforcement under Clauses 21 and 22 on fines and informing payment providers and ancillary service providers.
This same message is repeated in the Explanatory Notes:
“The BBFC is expected to be the regulator for the majority of the functions of the regulator (including issuing notices to ISPs to prevent access to material), but is not intended to take on the role of issuing financial penalties and enforcement notices to non-compliant websites”.
This begs an important question to which the Minister must now provide an answer. Who will be the other regulator? It is one thing to have not clarified this at the point of introducing the Bill. It is, however, quite another for the Bill to have passed entirely through one House and be well on its way through another without any update.
In asking this question, I should say that I was very pleased to see that the Government have said that the BBFC will assume the enforcement role in relation to Clause 23, which was introduced on Report in another place. This, however, still leaves questions about the enforcement regulator for Clauses 21 and 22 and how the enforcement regulator in these clauses will interact with the BBFC in its role as “notification” regulator.
In its report on the Bill, the Delegated Powers and Regulatory Reform Committee criticised the lack of information about the regulator, saying:
“The decision as to who to appoint as regulator should be taken before, not after, a Bill is introduced so that it can be fully scrutinised by Parliament. This is especially because the regulator will have important and significant powers conferred by Part 3 which include the ability to impose substantial civil penalties”.
Parliament should know who the enforcement regulator will be, since it will be able to impose these substantial penalties.
Your Lordships’ House should be informed how the enforcement regulator, assuming the Government are still planning on a second regulator, will operate with the BBFC in terms of the mechanics of deciding whether to issue a fine, an enforcement notice, or notice to internet service providers to block certain sites, and how the two regulators will produce consistent guidance for this part of the Bill. Ofcom would be an obvious option for enforcement, but last November it made it clear that it does not want the role. I ask the Minister: who do the Government have in mind? When will he bring that information to the House? I look forward to hearing what he has to say.

Lord Paddick: My Lords, I apologise to the Committee for not taking part in Second Reading. Having led on the Investigatory Powers Bill and the Policing and Crime Bill I was hoping for some time off for good behaviour, but apparently a policeman’s lot is not a happy one, even when he has retired.
My noble friend Lord Clement-Jones and I have Amendment 55B in this group. The first thing to say is that we on these Benches believe everything that can be demonstrated to be effective should be done to restrict children’s access to adult material online. We also believe that everything should be done to ensure that adults can access websites that contain material that it is legal for them to view. That is why Amendment 55B would require the age-verification regulator to produce an annual report on how effective the measures in the Bill have been in general in reducing the number of children accessing adult material online and how effective each enforcement mechanism has been. We also share the concerns expressed by the noble Baronesses, Lady Jones of Whitchurch and Lady Howe of Idlicote, on these provisions having been made somewhat at the last minute, and that they may not have been completely thought through.
The aims of the Bill and the other amendments in the group are laudable. The ideal that there should be equal protection for children online as there is offline is a good one, but it is almost impossible to achieve through enforcement alone. We have to be realistic about how relatively easy it is to prevent children accessing physical material sold in geographic locations and how relatively difficult, if not impossible, it is to prevent determined children accessing online material on the internet, much of which is free. An increasing proportion of adult material is not commercially produced.
That is not to say that we should not do all we can to prevent underage access to adult material, but we must not mislead by suggesting that doing all we can to prevent access is both necessary and sufficient to prevent children accessing adult material online, the detail of which I will come to in subsequent amendments. Of course internet service providers and ancillary service providers should do all they can to protect children, but there are also issues around freedom of expression that need to be taken into account.

Baroness Kidron: My Lords, in light of these and some later amendments, I want to raise the matter of ancillary service providers. My understanding is that social media platforms continue to argue that they do not fall within the definition of ancillary service providers and are seeking confirmation from government that they have no role to play in preventing children accessing pornography online.
I am aware that the Minister stated at Second Reading:
“The Government believe that services, including Twitter, can be classified by regulators as ancillary service providers where they are enabling or facilitating the making available of pornographic or prohibited material”.—[Official Report, 13/12/16; col. 1228.]
I was pleased to hear him say that, but I would like confirmation that it remains the Government’s position. Unless such platforms are included, I simply do not understand what Part 3 of the Bill hopes to achieve.
I am unconvinced that it is possible to remove all adult content from the purview of children, but it is imperative to make it clear to young people that viewing adult sexual content is a transgressive act and not a cultural norm, so, at a minimum, it should be as difficult as reaching the top shelf in a newsagent or being underage in a pub. That is imperative for reasons I set out in great detail at Second Reading, so I will not repeat them here but simply say that children and young people are turning in large numbers to pornography to learn about sex, with unhappy consequences. Often violent, mainly misogynistic, unrealistic adult male fantasy is not a good starting point for a healthy, happy, consensual sex life.
I would have preferred for the age verification system to be fully thought out, prototyped and beta-tested before it came to the House in the form of legislation. None the less, I agree that Part 3 is a valiant attempt to stem the flow of adult material into the hands and lives of children. In the absence of a better, more thought out plan, I support it. But if this is the path we are taking, we must be clear in our message: this material is unsuitable for those under the age of 18.
The BBFC says that it intends to take a proportionate approach to its new role and will target the top 50 adult websites as accessed by viewers in the UK. Its research shows that 70% of all those who access such sites in the UK visit the top 50. Among children, concentration among those top sites is even higher. In that respect, I understand that age-verifying 70% of adult material websites sends a clear message.
However, a brief search on Twitter, which has a joining age of 13, shows that commercial pornography is readily available, with popular accounts attracting hundreds of thousands of followers. Many of those who access pornographic social media accounts do not publicly follow them, so it is more than likely that the follower figures are dwarfed by the number of actual viewers. In the case of younger viewers, such platforms if accessed via an app leave no browser footprint that might be discovered by parents—a very attractive proposition.
If social media companies provide alternative access to the same or similar pornographic material with no restriction, surely the regulator should be entitled to take the same proportionate approach and target pornographic social media accounts with similar viewer numbers to those for adult websites. For most young people, social media platforms are the gateway to the internet. Unless they are to be included within the definition of ASPs, neither the problem of young people accessing pornography nor the ambition of setting a social norm that puts adult sexual material beyond the easy reach of children and young people will be achieved. It will simply migrate.
I note that social media platforms are not homogenous and that some, including Facebook and Instagram, already take steps to prevent pornography being posted and act quickly to take it down when it does go up. It is disappointing that not all platforms take this approach. I do not want to focus on Twitter, but noble Lords might like go to the account, @gspot1177, with its 750,000 public followers, which has been publishing pornography with impunity since 2009. Surely it is necessary to bring this into scope of the regulator.  Nobody is claiming that the measures set out in the Bill will prevent 100% of pornography being seen by children and I understand Ministers’ arguments that doing something is better than doing nothing, but I am concerned that in the lack of clarity about what does and does not fall within the definition of ASP there may lie a lack of political will about holding certain stakeholders to account.
I would love to hear from the Minister whether major social media platforms including Tumblr and Twitter have confirmed to the Government how they would respond to requests from the BBFC to withdraw services from a non-compliant site—and whether his statement at Second Reading that social media platforms may be considered ASPs by the regulator still stands.

Lord Storey: My Lords, I welcome the wise words of the noble Baroness, Lady Kidron. I also want to pay tribute to the work that the noble Baroness, Lady Howe, and my noble friend Lady Benjamin have done on this area. I well remember my noble friend Lady Benjamin almost doorstepping the former Prime Minister David Cameron to get something done on this area. He agreed that action would be taken.
I spoke on this at Second Reading—not in any technical way because I am not a particularly technical person; I spoke as a head teacher of 20-odd years on the harm that pornography potentially does, and is doing, to young people. We are rightly always concerned about the safeguarding of children and young people. We put in place all sorts of safeguarding procedures, yet we seem to find all sorts of reasons why we cannot do anything about pornography. Many young lives, frankly, are being corrupted in the pure innocence of childhood as they follow an older brother or sister, a friend or a mate, who might say, “Oh, have a look at this”. Once they get involved in this, it does immeasurable harm, not only to the child but to their view of women, for example.
A young child of 12 or 13 on the internet, perhaps by accident, perhaps by a dare, perhaps encouraged by another person, watching female rape enacted—this is not something I want to be part of. I do not want a society that allows that to happen. It is important, and my noble friend Lord Paddick is right to say, that we should be effective in what we do. He also said that if children are determined they can access this, no matter what we put in place, but that is not a reason not to do something. The vast majority of children will do something. If somebody is determined to do something, they will always be able to do it. I hope that will not be a reason not to do something. I am relaxed about our having a look at this to get it right. I know it whizzed through the Commons, but even at this late stage I am relaxed about making sure that every “i” is dotted and every “t” is crossed in the interests of young people.

Baroness Byford: My Lords, I spoke at Second Reading on this aspect of the Bill. I was one of the people who said very clearly that I should much prefer not to have pornography of any sort on any website, because the world would be much better without it. The previous speaker is quite right. The influence that modern communication has on young people is  devastating. In some families, it really has been disruptive and led to unfortunate consequences within them.
I welcome the Minister’s statement that they will take this away, think about it and come back again. I reiterate my dismay that again we have another very important Bill from the Commons that really has not been dealt with in the proper manner. I hope that in future the Commons will be allowed more time or will organise itself so that it can do the job it should and can do, and not leave it to this House to be the one saying, “Hang on”.
If you look at the number of amendments tabled to this one Bill, it reinforces the whole position that my noble friend the Minister must deal with, which in many cases should have been dealt with before. I am an old hand here and still feel strongly about this. I do not complain that my right honourable friends at the other end have not had the opportunity to do this—that is how the system works. However, we go on, year after year, saying the same thing and it is high time we got to grips with this. I would like to push a little further on the Minister’s response earlier that the Government will look at this: it is hugely important that they do.
I have slight concerns about Ofcom being perhaps one of those who should undertake this. In some ways, Ofcom is not always as robust as I would like it to be, which is perhaps unfair. Secondly, we certainly need to identify in the Bill before it leaves our House exactly what is to happen: who the enforcer is where there are dual splits within what we seek to do in the Bill. The Bill is hugely important and I hope that the Government will, as they have already indicated, take it away after Committee and think seriously about it. I would hate to think that some of the final detail will come through in secondary legislation, which we cannot alter. We need to get this into primary legislation. I support the comments made by other noble Lords and look forward to the Minister responding and, I hope, being able to take it away and come back, even if that means it happens a little later. It is much better to get it right later than to leave it in its current form.

Earl of Erroll: My Lords, I will make some brief points. First, on this set of amendments I am afraid I disagree with the noble Baroness: we must get on with this. It will not be perfect on day one but the sooner we get moving the better. We have talked about this for a very long time. That is why I am not really pro these amendments.
On Amendment 55, I agree entirely with my noble friend Lady Howe. She is absolutely right to spot this lacuna: the BBFC will look at this stuff and age verification, but who will enforce it? That is a problem and I was going to raise it later anyway. She was absolutely spot on there. My noble friend Lady Kidron was also absolutely spot on about these sites. Twitter could be classified as commercial because it takes money from pornography sites to promote them. I can get evidence of that. It would be difficult for it to say that it does not promote them.
Very quickly on what the Minister said, I was going to raise under the group starting with Amendment 57 the issue of including prohibited material with the age verification stuff. We should separate protecting children  from protecting adults or it will confuse things. The big danger is that if we start using this to protect adults from stuff that they should not see—in other words, some of the adult prohibited material, of which there is quite a lot out there—we run the risk of challenges in court. Everything that the BBFC does not classify because it falls into certain categories is automatically prohibited material. It is not allowed to classify certain acts. I should probably not tell noble Lords about those now as they are pretty unpleasant but they are fairly prevalent in the hardcore pornography out there. If the pornography sites are blocked from supplying adults with what they want, they will just move offshore and get round this. If they do that, there will be no point in doing age verification and we will not protect our children. That will create the first major loophole in the entire thing.
I have this from the pornographers themselves. They know what they are doing. However, they are very happy—and would like—to protect children. If we leave them alone and argue through the Obscene Publications Act and other such things as to what they must stop adults seeing, they will help block children. They are very keen on that. Children just waste their time as they do not have money to spend. At the end of the day, the pornographers want to extract money from people.
I am advised that the real problem is that prohibited material includes content that would be refused a BBFC R18 certificate. The Crown Prosecution Service charging practice is apparently out of sync with recent obscenity case law in the courts. Most non-UK producers and distributors work on common global compliance standards based on Visa and Mastercard’s brand-protection guidelines. Maybe we should start to align with that. We should deal with that separately under the Obscene Publications Act. It will be very easy for the BBFC, the regulator or the enforcer to tell what does not have age verification on the front. That is yes/no—it is very simple. The trouble is that if we get into prohibited material, it will end up before the courts. We will have to go through court procedures and it will take much longer to block the sites. I would remove that from here. I shall leave my other comments to a later stage.

Lord Ashton of Hyde: My Lords, I am grateful for those contributions. They address some very important issues, some of which we will deal with now and some of which we will deal with later during the progress of the Bill. To start at the end, the noble Earl, Lord Erroll, made some interesting points regarding the statement that I made. We absolutely acknowledge some of them. I have listened to his suggestions. Our focus here is to protect children. That is what this Bill is for. That is what our manifesto commitment was. When he sees our suggestions, I hope that he will be able to contribute to the debate on Report—but I have noted everything he said.
The introduction of a new law requiring appropriate age verification measures for online pornography is a bold new step. It represents the first stage of ensuring that commercial providers of online pornographic material are rightly held responsible for what they provide and profit from.
Amendment 54B would require the regulator to publish guidance about the overarching duty of care on internet-service providers and ancillary service providers, and their responsibility to ensure that all reasonable steps are taken to ensure the safety of a child or young person involved in activities or interaction for which the service provider is responsible. The purpose of our measures is to protect children from pornographic material. Seeking to stretch the framework further to regulate companies on a different basis risks the delivery of our aim. However, that is not to say that we want to ignore the issue. We take the issue of child safety online seriously and engage intensively with the industry through the UK Council for Child Internet Safety to ensure that robust protections are in place.
The Government expect industry to play a leading role in internet safety provisions, as it is best placed to offer safety and protection to children and young people. We know that it is already doing this and has default protections for under-18s, including the use of parental controls and tools to allow users to flag content, protect user privacy as well as educate users on staying safe with information and advice. We will have further opportunities to discuss the role of the industry, including social media and internet service provider filters later in Committee.
Amendment 54D seeks to introduce a new clause with the requirement that the Secretary of State must consult on the role of the age verification regulator. The clause further seeks that the Secretary of State must lay before each House of Parliament a report on the results of the consultation and the Secretary of State’s conclusions, with any appointments to be subject to approval in each House. The introduction of the measures requiring appropriate age verification for online pornography follows public consultation. We asked about the powers that a regulator should have and there was strong support for a number of responsibilities that we have introduced. The passage of this Bill has provided an important opportunity for debate on this and we have seen the introduction of an important new blocking power for the regulator, which we shall discuss later.
We are grateful to the DPRRC and the Constitution Committee for their reports, which a number of noble Lords mentioned. They made a number of recommendations about the designation of the regulator and how the regulator should fulfil its role. We are carefully considering those and will publish our response before Report.
Amendment 55, in the name of the noble Baroness, Lady Howe, would specify that the Secretary of State is to designate the British Board of Film Classification as the age verification regulator. As the Committee will know, Clauses 17 and 18 provide for the designation of the regulator and we intend to designate the BBFC to carry out most—as the noble Baroness, Lady Howe, reminded us—of the functions of the regulator. Indeed, some noble Lords may have seen the BBFC’s recent presentation to the Children’s Media and the Arts APPG.
It is important that we work with organisations that have a proven record in their field and the right attributes to carry out the role effectively. This is why we are pleased to be working with the BBFC, which  has expertise in making editorial judgments over pornographic content. We also believe it is right that Parliament should have the opportunity to scrutinise this important appointment, and Clauses 17 and 18 enable that to happen. The noble Baronesses, Lady Howe and Lady Jones, my noble friend Lady Byford and the noble Earl, Lord Erroll, all asked whether we should outline in the Bill who any additional regulators, if they are necessary, should be. We have said consistently that this could be a job for more than one regulator because it is a big task. The feedback from our public consultation and from our engagement with key stakeholders suggests that this is a task that could be dealt with by two regulators.
We propose that the BBFC should carry out the initial monitoring, assessing and notification work, and we are carefully considering alongside this the option for an enforcement regulator. But we understand that Parliament should be able to take a view on this. We continue to consider the appropriate timing for introducing civil sanctions for non-compliant providers, and for deciding who the regulator will be. This is a new system and this approach provides the appropriate level of flexibility and the right levers to ensure that the providers of pornographic material will be incentivised to comply. We have listened to the views of the noble Baroness, Lady Howe, and other noble Lords on this. Again, the DPRRC has made a recommendation on this, which we are considering, and to which we will respond ahead of Report.
Amendment 55B adds the requirement:
“The age-verification regulator must make an annual report to the Secretary of State … in particular on the effectiveness of … the provisions in Part 3 of reducing the number of children under 18 accessing pornographic material online … The Secretary of State must lay a copy of any report made under this section before each House of Parliament”.
The regulator will of course be expected to report on the impact of age verification measures but we do not think that it is right to prescribe this in the Bill. The importance of getting this measure right means that the Government remain open-minded and wish to retain flexibility as to how best to respond to changing circumstances, without placing additional burdens on the regulator. Any new scheme must be given time to fine-tune the changes required to establish the most effective system.
The noble Baroness, Lady Kidron, asked about ancillary service providers, in connection with social media. I confirm, as she asked me to do, that it remains our view that under this legislation an internet site can be classified by the regulator as an ancillary service provider where it is enabling or facilitating the making available of pornographic or prohibited material, as I said at Second Reading. That means that such sites can be notified of pornographers to whom they provide a service. There is a range of potential ancillary service providers and the differing actions they could take are often technology-dependent. The regulator is consulting with the industry and we expect it to publish guidance on the circumstances in which it will notify ancillary service providers.
We think there is a fundamental difference between a pornography website that produces dangerous material, which can be closed down, and an ancillary service provider, which can make it available. The method of  notification is what we are expecting to use and we are reluctant to move further than that at the moment. We will see how it works. We do not want to get to the situation where we have to close down the whole of Twitter—which would make us one of two countries in the world that has done that.
On the basis of those explanations, I would be grateful if the noble Baroness felt able to withdraw her amendment.

Baroness Jones of Whitchurch: My Lords, I thank the Minister for his opening statement and for his comments now, but I do not really feel that he addressed our concerns about the overarching architecture of the regulatory structure: where the power should lie, the detail of which regulator has which functions and so on, and whether there is a need for someone to oversee the whole regime.
I also thank the Minister for his offer of further discussions about this, but as a number of noble Lords have said, it is rather frustrating that the information and debate that we ought to be having here in Committee is being shifted backwards so that we will have it in correspondence or perhaps offline before Report. Normally, we would expect the government proposals to be in front of us here, so that we can debate them in detail. As the noble Baroness, Lady Byford, said, once again we find that the debates that we should be having in Committee are happening on Report, which makes it very frustrating for everybody involved. That also applies to the reports from the Delegated Powers Committee and the Constitution Committee. With respect, the Government have had those documents for several weeks now, and I would have thought it would have been possible to have given us a response as to how the Government intend to react to them before today’s debate. I find this whole process for considering Part 3 very frustrating. Notwithstanding that, I know that the Minister means well and I am sure we will all want to take up his offer of further discussions, if that is possible.
The noble Baroness, Lady Howe, made a very good point about who the other regulator will be, and I was not sure that the Minister really answered it. Again, if we are going to get down to putting in the Bill that the BBFC will have part of that function, it is right that we should also say who will have the other part of it; otherwise, the Bill is not going to make sense. So I have an ongoing sense of frustration. Some of the issues that a number of noble Lords have raised will spill into some of the discussions that we will have on other amendments and will no doubt come up several times, regrettably, although maybe that is just because of the way that we have structured some of the amendments.
I agree absolutely with the noble Baroness, Lady Kidron, that we need a much clearer definition of ancillary service providers. To the outside world, that is a non-phrase really, but it means either so much or so little, and we just need some clearer definition of what it means in terms of the responsibilities of social media providers. It may well be, as I think the noble Lord was suggesting, that some of them have different responsibilities from others, but we need that debate. It is a really important debate, since as the noble  Baroness was saying, children are accessing this material and there do not seem to be any real proposals in front of us for how we are going to get a grip on that. That is perhaps something that we can return to later as we debate other provisions in Part 3.
Finally, I think the Minister strayed into the whole issue of what is prohibited material. Again, we have amendments on that later and will return to it when those are discussed, but I thought that we had made more progress on that than the Minister is now suggesting. I know that a number of noble Lords had a meeting with Matt Hancock, the Minister, a couple of weeks ago, and I thought that we were edging towards a new form of words, but it does not seem that this is before us from what the Minister has said. So again, we have a level of frustration about this.

Lord Ashton of Hyde: Let me confirm that I hope we are edging towards some agreement; it is just that, as the noble Baroness will be aware, there are times when one can announce these things and there are times when one cannot. I agree with her that it is somewhat frustrating—in the same way that it is frustrating when, though we have had the Explanatory Memorandum since the Summer Recess, amendments appear at the last minute. It is a frustrating process.

Baroness Jones of Whitchurch: Well, this is because the discussion has gone on over the summer, with yourselves and with other people. We have been seeking clarification, which we have not had, which is why we finally put down amendments. Anyway, this debate is going to continue, I think, through the course of Part 3. In the meantime, I beg leave to withdraw the amendment.
Amendment 54B withdrawn.

Amendment 54C

Moved by Baroness Jones of Whitchurch
54C: Clause 15, page 18, line 25, at end insert—“( ) The Secretary of State shall by regulations made by statutory instrument lay guidance for the purposes of subsection (3) before both Houses of Parliament.”

Baroness Jones of Whitchurch: My Lords, this returns to some of the more detailed proposals of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee. As I have already said, when we first looked at Part 3, we were immediately concerned about the lack of oversight and accountability of the powers and functions of the age verification regulator or regulators. So we were not surprised, when the reports of the Constitution Committee and the Delegated Powers and Regulatory Reform Committee were published, that they very much echo our concerns. For example, the Constitution Committee said:
“We are concerned that the extent to which the Bill leaves the details of the age-verification regime to guidance and guidelines to be published by the as yet-to-be-designated regulator adversely affects the ability of the House effectively to scrutinise this legislation. … The House may wish to consider whether it would be appropriate for a greater degree of detail to be included on the face of the bill”.
This is what we are debating and grappling with today.
The Delegated Powers Committee raised a number of more detailed criticisms. For example, it was concerned that the Bill leaves it to the Secretary of State to determine who the regulator or regulators should be, and said that it is inappropriate for the regulator to then decide what the appeals mechanism should be. It flagged up the need for this to be an independent body. It was deeply concerned that the regulator would be left to draw up its own guidelines on the circumstances in which internet sites would be deemed to be publishing pornographic materials. It went on to say:
“We consider it objectionable as a matter of principle that a regulator, who is to be clothed with extensive powers to impose fines and take other enforcement action, should itself be able to specify how key concepts used in clause 15(1) are to be interpreted”.
It also noted that further broad discretion to the regulator was being granted to produce guidelines on the application of those financial penalties. In all these areas it therefore recommended that the regulator’s guidelines should be laid before Parliament and subject to the affirmative process. In the absence of a positive government response to these recommendations, we have been helpful by setting out a number of amendments that aim to achieve that desired outcome.
So Amendment 54C would require the guidance on the types of arrangements for making pornographic material available, and circumstances in which it is judged to be commercial, to be laid as SIs before both Houses. Amendment 55A specifies that the Secretary of State should make regulations for a clear appeals procedure which would come before both Houses, and makes it clear that the appeals regime should be independent. We are also supporting Amendments 69 and 229B, in the name of the noble Lord, Lord Paddick, which aim to achieve a similar outcome.
Amendment 56A would require an SI on the arrangements for issuing enforcement notices to those who contravene the age verification regime. Amendment 62A would require the guidelines on the blocking of access to sites via payment providers and ancillary service providers to come before both Houses in the form of SIs. All these proposals are drawn from the recommendations of the Delegated Powers Committee.
I have also added my name to Amendment 66, in the name of the noble Lord, Lord Paddick. We believe that the power to block sites, while important as an ultimate deterrent, should be imposed proportionately and with careful scrutiny. The current wording of Clause 23 allows for the regulator to give a notice to an internet service provider that it should block non-compliant sites so that the offending material cannot be accessed. The clause also specifies that the regulator should inform the Secretary of State of its intention to give such a notice. We do not believe that that is the right mechanism, and it does not provide enough independent scrutiny of the decision. This is why the amendment requires a blocking injunction to be initiated by the Secretary of State in conjunction with the regulator.
As I have already said, like many others, we have received representations from the internet service providers about the scale of the demands on them in Part 3. They are, after all, the innocent parties in this process. They are, in effect, caught in the middle between the  regulator and the offending pornographic site. Understandably, they have requested that any decision to block a site should be legally watertight and implemented as a measure of last resort. We agree with that. If the Bill is to be successful, the threat of a site being blocked should be enough to deliver the desired change. This is why this amendment is important. It would bring legal certainty into the process for the ISPs which would help them avoid separate legal challenge. It also positions blocking more clearly as an ultimate sanction which would be adopted in extreme cases. We therefore support Amendment 66.
As I have made clear, these are all procedural amendments that spell out the detail that the Delegated Powers Committee said was lacking. We had hoped that the Government would have tabled their own amendments to achieve a similar outcome, but in the absence of that positive government response I hope that noble Lords will feel able to support our amendments. I beg to move.

Lord Morrow: My Lords, when I spoke on Second Reading on 13 December, I addressed the enforcement provision in Part 3, and want to do so again today. I warmly welcomed Clause 23, as have other noble Lords, that the Government introduced on Report in another place, and I continue to do so.
Clause 23 is a robust provision and I believe that it would be far more effective than the proposal in Amendment 66, tabled by the noble Lords, Lord Paddick and Lord Clement-Jones, which would replace Clause 23 with one entitled “Court orders”. The truth is, as I shall explain when speaking to amendments in the next group, that there are real problems with the enforcement mechanisms provided by Clauses 21 and 22 of the Bill, especially in relation to websites based outside the United Kingdom. This has always been a special concern, because the vast majority of online pornography accessed from within the UK is accessed from sites based in other jurisdictions.
The failure of Clauses 21 and 22 to provide credible enforcement mechanisms for the age verification requirement in Part 3 was highlighted very effectively in another place by parliamentarians from across the political spectrum. The critical thing about Clause 23 is that it gives the age verification regulator the power to enforce the age verification check provision without delay. The knowledge that, regardless of where in the world the site is based, it can be blocked by the UK age verification regulator will give those sites a strong incentive to introduce robust age verification. Amendment 66, by contrast, would place this in great jeopardy.
I want to raise three major problems with Amendment 66. First, it causes delay in the sense that, if it were to become law, we would then have to wait for the Secretary of State to introduce regulations, without which the age verification regulator would have no power to initiate IP blocking. Secondly, Amendment 66 makes the provision of these regulations, and thus the provision of IP blocking, entirely optional. If the Secretary of State does not get round to producing the regulations, there will be no IP blocking at all. Thirdly, in depending on a court injunction process, this amendment apparently prefers a very much slower,  more expensive and more cumbersome mechanism, which websites will know cannot be used very often. This will give them hope that they can carry on without age verification checks because the chances of their being caught will be much less. Of course, the existence of the current Clause 23 powers does not mean that those powers will be used frequently, but the fact that websites will know that they could be deployed quickly and easily will make them much more wary about taking such risks, and will therefore keep children that much safer.
In setting out these objections, I make two other points. First, I understand the argument that there is a copyright precedent for the use of court injunctions, but the idea that we should therefore necessarily follow it is not remotely compelling. There was once a time when injunctions were not used in relation to copyright, but—rather than saying that there is no precedent to act and therefore we should not act—the decision was made that we should act and, in the case of copyright infringement, the use of injunctions was appropriate. Today, though, we are not dealing with copyright infringement; we are dealing with something quite different, which has a concern for child protection at its core. In this context, the mechanism set out by the Government in Clause 23 is more effective and much more appropriate. Secondly, if Amendment 66 is based narrowly on a civil liberties concern, I would have to say that, quite apart from the fact that this concern has to be balanced with a concern for child protection—which, in my view, Amendment 66 does not manage to achieve—it is important not to lose sight of the fact that any decision on the age verification regulation could be judicially reviewed.
When faced with a relatively robust provision of an enforcement mechanism for age verification that would help keep children safe, Amendment 66 with its delays and optional, rather than mandatory, standing cannot but be seen as an attempt to weaken the child protection provisions in the Bill, which I find deeply disturbing. Part 3 of this Bill entered your Lordships’ House as a robust and progressive measure placing us at the cutting edge of child protection online. If we were to replace Clause 23 with Amendment 66, it would leave us much weaker and—in the sense that websites would know that they could risk never being held to account for not having age verification checks—fatally compromised. I believe that this is misjudged, misconceived and mistimed. I very much hope that the Minister will stand by Clause 23 and oppose Amendment 66.

Lord Clement-Jones: My Lords, I am absolutely delighted that we have had the views of the noble Lord, Lord Morrow, about my amendment before I had a chance to speak to it, but maybe that’s life—he has given me the benefit of his views before I have set my own on record. I thought that the noble Baroness, Lady Jones, set out extremely well the frustrations of those of us who, in the words of my noble friend Lord Storey, are very keen to make sure we get the right shape for this part of the Bill. There is absolutely no difference between us, in that we wish to see Part 3 be as effective as possible in preventing access to child pornography. We have been debating for only an hour and it is quite clear that this part of the Bill is worryingly embryonic.

Lord Maxton: My Lords, just for the sake of clarity, the noble Lord used the term “child pornography”, which is not the purpose of the verification. Verification is to stop children accessing pornography—let us get that absolutely right and on the record.

Lord Clement-Jones: I am grateful to the noble Lord, Lord Maxton, for that intervention. He is entirely correct—I misspoke. We are also grateful to the noble Baroness, Lady Jones, for highlighting that the Constitution Committee and the Delegated Powers and Regulatory Reform Committee both pointed out considerable flaws in the way this part of the Bill is constructed.
In particular, I want to speak about the lack of appeal mechanisms. The Delegated Powers and Regulatory Reform Committee said:
“We consider it inappropriate for the important question of appeals to be left to ‘arrangements’ made by the regulator, subject only to the approval of the Secretary of State, without any type of Parliamentary scrutiny”.
The committee was not the only one that made such comments. Interestingly enough, even the UN Special Rapporteur has commented on this:
“Moreover, I express concern at the lack of judicial oversight with respect to the power of the age-verification regulator to shut down websites that do not comply with the age-verification requirement. Any legislation restricting the right to freedom of expression and the right to privacy, as well as any determination on the shut down of websites must be undertaken by a body which is independent of any political, commercial or unwarranted influence in a manner that is neither arbitrary nor discriminatory”.
That is fairly powerful testimony.
There are a number of different ways of achieving an appeals mechanism. The first mechanism, to which the noble Lord, Lord Morrow, takes such considerable exception, is to have a judicial process at the beginning, before any website blocking can take place. The other is to allow an appeal after a website has been blocked. With regard to the appeal afterwards, at the time the amendment was drafted it was thought that the BBFC would be the age verification regulator, and we very much welcomed its involvement. However, it has now become clear—perhaps “clear” is not the adjective I should use; rather, it appears to be emerging—that the BBFC will not be the only regulator involved in Part 3.
When Amendments 69 and 229B were drafted we tried to make the new form of appeal very similar to the kinds of appeal mechanism that that the BBFC uses for the purposes of the Video Recordings Act. In fact, most of the rubric in Amendment 229B comes from the part of the BBFC website that demonstrates the system of appeals on certification and so on. That seemed a sensible and reasonable way of proceeding, on the basis that the BBFC would be the age verification regulator for the purposes of Clause 23. One may wish to adopt a different form of appeal if that is not the case.
The second approach, which the noble Lord, Lord Morrow, objects to so strongly, is set out in Amendment 66. That is obviously a mechanism designed to make sure that before the very serious step of website blocking is taken, a certain procedure is gone through, ensuring that it is a last resort, and that there  is proper oversight of the way in which the age verification regulator has conducted itself. That, too, seems an entirely reasonable approach.
What we are all looking for is an indication from the Government that they accept the need for this kind of appeal mechanism, whatever it may be, and that we will be able to have a look at it on Report. I should point out that we finish our fourth day in Committee next Wednesday, after which we break up for half term, and then come almost straight back to Report stage. There is very little time for much debate and discussion about these matters. This is one of the real issues, so I hope the Minister will ensure that the discussions start immediately and that, as the noble Baroness, Lady Jones, asked, the Government will respond quickly to the report of the Delegated Powers and Regulatory Reform Committee, and also to the Constitution Committee’s report. Otherwise we will all remain in the dark until the Minister decides to enlighten us on 22 February.

Earl of Erroll: My Lords, I put my name down to one of these amendments because I wanted to talk about appeals. The reason for that is very simple and comes back to what I said earlier. I do not think there should be any question about there being no age verification. That should be almost an absolute offence: if there is no age verification, a site can be blocked, just like that. If the relevant people want to make an appeal, they can do so later and make it as complicated as they like. The main issue has already been raised and I agree entirely with the noble Lord, Lord Morrow, that Clause 23 is ideal. I entirely agree with the point about the foreign sites. They are not going to do anything if we do not block them. They will just mess around and children will get access to adult pornography for goodness knows how long. We need to be able to block immediately sites that do not have age verification.
I refer to appeals as we are muddling up the question of what is pornography with that of what is material that adults are not permitted to view. We need an appeals mechanism as we are going to get wrapped up in the lacunae and the mismatches between the Obscene Publications Act, the court cases and everything else, as I said earlier. We can see a Lady Chatterley-style case going through and taking years. In the meantime, all the non-age verified sites have to do is to keep appealing or whatever. That is not going to work. If we are going to include what is permitted for adults to view in this part of the Bill, we need an appeals process for that, but not an appeals process if the relevant sites do not have age verification in relation to potentially pornographic material. I will talk about that when we discuss the group of amendments commencing with Amendment 57.

Baroness Benjamin: My Lords, first, I thank the Minister for his opening remarks at the beginning of this debate. I was pleased to hear that the Government are in listening mode as we work our way carefully through this Bill.
When we speak about the crucial subject of the enforcement of the age verification provision, it is vital to remember that we are talking about how we ensure   that children and young people are kept safe. All the evidence is that early exposure to pornographic material can be extremely harmful to children. The Economist reported that given the view that sexual tastes are formed around puberty,
“ill-timed exposure to unpleasant or bizarre material could cause a lifelong problem”.
As I repeatedly say, childhood lasts a lifetime.
There is evidence that pornography can lead to unrealistic attitudes to sex, damaging impacts on young people’s views of sex and relationships, putting pressure on how they look or influencing them to act in a certain way. All of that reminds us of the context in which we are having these discussions on the finer points of enforcement. With this context in mind, we need to make sure that the age verification provisions in Part 3 are backed up with the most effective means of enforcement.
We have heard noble Lords set out why they think Amendment 66 would be better than Clause 23, but does it really stand scrutiny? There is a concern about the delay that would result from Amendment 66. Quite apart from the fact that requiring the age verification regulator to enforce the age verification requirement through court injunctions would be much slower and much more expensive than the procedure under Clause 23, there is the fact that Amendment 66 would further delay the provision of effective enforcement, and therefore child protection, through the requirement that IP blocking would take effect only if the Secretary of State at some future point decides to make regulations allowing this. In this regard I am particularly concerned that the drafting of proposed new subsection (1) in Amendment 66 implies that the Secretary of State can consider making regulations only when the BBFC considers that there is an actual person in contravention. The BBFC cannot be ahead of the game and will be on the back foot while it waits for the regulations to be made, if they are to be made at all. This does not make our children and young people safer. I am also concerned that Amendment 66 does not provide legal clarity for ISPs at this stage of the Bill on whether IP blocking will be required and, if so, how that will need to be delivered.
While Amendment 66 does not provide certainty, Clause 23 sets out very clearly its central requirement in subsection (2)(c) that an ISP must,
“prevent persons in the United Kingdom from being able to access the offending material using the service it provides”.
It sets out when that would be required in subsection (1), how it would be implemented in subsection (2) and the obligations on the ISPs in subsection (8). The BBFC knows what it can do; the ISPs know what will be expected of them; and the pornographic websites will be clear that their sites might be blocked if they do not comply with Part 3. In comparison with the much weaker Amendment 66, Clause 23 is so effective that exchanging them would fundamentally weaken the child safety provisions in the Bill. That would be a real tragedy.
Why are we making exceptions for porn merchants? We have had a system in place in the UK for dealing with child abuse images for over 20 years. It is the envy of the world. It has never required prior judicial authorisation. Let us be clear: the Internet Watch  Foundation, which runs the system, could at any time be brought to court to explain an action or decision it has taken, because it is subject to judicial review. Not only has the IWF never lost a judicial review case, no one has ever taken one against it. We get rid of terrorist material without requiring any judges or courts to get involved and I have never heard any criticism of that system. But if we are talking about protecting children against porn—oh no. Everything slows down, everything becomes more expensive and we have to get a judge and lawyers involved, because it is suggested that, uniquely, we need prior judicial authorisation.
However, the age verification regulator will have an appeals system. Every decision the regulator takes can be made the subject of a judicial review. If the regulator gets taken to court and loses all the time, perhaps we would need to look at the provisions again, but I have absolutely no reason to believe that would be the case. Therefore I think that Amendment 66 should be rejected, because the material we are talking about here is extremely harmful to children and we want it out of sight as quickly and simply as possible. I am sure that no one in this House would want their children or grandchildren ever to be exposed to or damaged by this vile material. Our overworked courts and judges have enough on their plates. We simply do not need to drag them into this on a routine basis. Let us put our children’s well-being and protection first. I very much hope that the Government will stand by Clause 23 and reject Amendment 66.

Baroness Howe of Idlicote: My Lords, like the noble Baroness, Lady Benjamin, I rise to speak against Amendment 66, which in my judgment would seriously undermine the scope for Part 3 of the Bill to be enforced. I have campaigned for child safety online for many years and am far from reassured that the amendment will deliver on that objective. I have also raised repeatedly concern about the quantity and type of pornography accessed in the UK but based in other jurisdictions. I am very pleased that the Government have recognised that this is a significant issue. However, without being able to ensure that foreign websites take the action that is required under Part 3, in practical terms we will be no further forward.
This is no theoretical discussion. In its evidence to the Public Bill Committee in the other place, the British Board of Film Classification said that it planned to target regulation at about 50 sites and that it does not expect any of these to be in the UK. Clause 21 sets out fines but is far from clear about what the Government can do if a site in another jurisdiction refuses to pay a fine; your Lordships can come back to that when we debate the next group of amendments.
Clause 22 has a better international reach but it fails in a number of different scenarios relevant to the discussion on Clause 23: first, if a site offers free pornography; secondly, if it does not use conventional credit cards but relies on payment methods such as bitcoin; and thirdly, if the website does not use a UK-based ancillary service provider. These very brief statements highlight the need for another enforcement option for foreign websites, and I am pleased that many members in the other place agreed. I commend the work of Mrs Claire Perry, the honourable Member  for Devizes, who had the support of 34 MPs from seven parties for her amendment, which had a similar objective to Clause 23. I also congratulate the Government on responding constructively with the introduction of Clause 23.
For Part 3 to be effectively enforced, it is critical that foreign sites know that the UK regulator could block them. The Digital Policy Alliance, in its briefings on the Bill, said that that there would be a major loophole in the Bill without an IP-blocking option. To this end, the proposals in Amendment 66 are deeply problematic. My noble friend Lord Morrow has already mentioned concerns about delays arising from the need for the Secretary of State to produce regulations and the question of whether he or she will use the power. On top of this, court injunctions are expensive and cumbersome, and every website would know that they could be used only very occasionally, which could tempt foreign sites accessing the UK to risk not bothering with age verification.
I am also concerned that Amendment 66 would undermine the admirable work the Internet Watch Foundation does on removing child abuse images. I understand that if blocking of pornographic and prohibited material should require court injunctions, it will form a very difficult precedent for bodies such as the foundation, which help to keep our children safe. If it had to use a court injunction every time it requested that a page should be taken down, that would greatly limit and inhibit its capacity and as such would be a grave and very serious mistake.
By contrast, Clause 23(1) allows the BBFC to use IP blocking, after notifying the Secretary of State, from the day Part 3 comes into effect. The BBFC may need to use this power early into the Bill’s implementation if it cannot trace a foreign website or if the website is unresponsive and does not use credit card payments, which might be blocked under Clause 22. There will be no delay as to when this enforcement power can be used. Secondly, it will give the BBFC the power to ask ISPs to block sites when they need to. It is not saying that they must use this power but that they can. There will be no delay or the expense of going to court to get a blocking injunction. Thirdly, there will be no negative impacts on the Internet Watch Foundation and the admirable work it does on removing child abuse images.
In a context where the majority of online pornography accessed in the UK comes from websites based in other jurisdictions, the provision of a robust and flexible IP blocking mechanism is central to the ability of this legislation to enforce the age verification provisions that are at its heart to keep our children safe. To swap Clause 23 for Amendment 66 would not reflect well on us. In closing, I warmly congratulate the Government on Clause 23 and hope that they and the Minister will stand resolutely by it and against Amendment 66.

Lord Ashton of Hyde: My Lords, this has been an important and interesting debate—I can tell that by the number of Peers who are arriving to hear my response. I also appreciate very much the offer of help given by the noble Baroness, Lady Jones. I have listened carefully to the arguments and again I acknowledge  that we are not able to give our answer on the DPRRC’s report, but as the noble Lord, Lord Clement-Jones, said, it is very important to get it right and we will produce the response soon.
The age verification regime was designed to provide a proportionate and practical response to the very real problem of the easy availability of internet pornography to children, and we need to bear that in mind when considering this issue. Amendments 55A, 69 and 229B are concerned with appeals. The BBFC has a strong track record in running the system of classification, including a two-stage appeals process which includes an appeal to an independent authority. We understand the desire to specify in detail on the face of the Bill what an appeals process must look like for what is undoubtedly a serious matter, but we are satisfied that the BBFC is in a strong position to develop and administer a fit-for-purpose appeals process. Clause 17 specifies that the Secretary of state may not designate the regulator until satisfied that arrangements will be maintained by the regulator for appeals by the key persons involved in the regulatory framework, as set out in Clause 17(4)(a) to (e). As the noble Baroness, Lady Jones, said, the DPRRC has made some well-considered recommendations on appeals that we are considering and will be responding to before Report.
Amendments 54C, 56A and 62A provide that the Secretary of State must, in regulations made by statutory instrument, lay guidelines before each House of Parliament on different areas of the regulatory framework. The internet, as we all know, is a fast-changing area and the legislation has been drafted with the necessary flexibility to create a proportionate regulatory framework. For example, it will be for the regulator to publish guidance about ancillary service providers. I have also noted the recommendation of the DPRRC on these matters and I can assure noble Lords that we are considering it carefully before responding.
On the issue of ISP blocking, government Amendment 67 ensures that the regulator must not direct an ISP to block a non-compliant site should that be detrimental to national security, the prevention or detection of serious crime, or an offence listed in Schedule 3 to the Sexual Offences Act 2003. We believe that it is right that the actions of the regulator in seeking to protect children from pornographic content should not have unintended consequences for the work of law enforcement and the security and intelligence agencies in combating serious crime and protecting national security. I am confident that the industry will take a responsible position and therefore envisage that the regulator will need to use this power only sparingly. However, where it does need to be used, I would suggest that the regulator would never wish to be in a position where it might have an unintended impact on efforts to ensure public safety.
The provision provides an important safeguard for circumstances in which a site might form part of an investigation. The Government and the regulator will agree arrangements for how the deconfliction process will take place. This is an important step towards ensuring that the regulatory regime functions in a successful way and giving the regulator a framework in which to succeed.
Amendment 66 tabled in the name of the noble Lord, Lord Paddick, and other noble Lords brings forward blocking by court order. We recognise that providing the regulator with the power to direct internet service providers to block content is a serious step, but the conflicting views of noble Lords in the debate show that this is a difficult area to get right. We have always been clear that we want to build an effective regime. This is fundamentally different content to regimes where court orders are used. As I have said, and the noble Baroness, Lady Jones, agreed, we envisage that the regulator will need to use this power only sparingly. However, the cost and process of the court order procedure would place undue burden on the system We know that the court order process for copyright, for example, is not without issues, and unlike copyright where the individual is seeking a court order, in this case there is a regulator with expertise in classification.
It is important to note that our regime is about encouraging compliance by the industry. Giving the regulator the power to direct internet service providers is the proportionate and right approach to ensuring that children are not inadvertently exposed to harmful pornographic material. With that explanation, I hope that the noble Baroness will withdraw her amendment.

Baroness Jones of Whitchurch: My Lords, I thank all noble Lords who have contributed to this discussion. I say to the noble Lord, Lord Morrow, that we are all trying to balance child protection and civil liberties; that is the issue we are trying to resolve. Indeed, there is no black-and-white answer and it may well be that we will need to have further discussions. But I remind noble Lords that the Delegated Powers Committee said that it considered it objectionable for an unspecified regulator—people have talked about it being the BBFC but I do not think it necessarily will be—to have so much power to impose fines and take other enforcement action. We need to look again at how we can ensure some other oversight of those powers. Amendment 66 would provide a legal structure for all that, and we still feel it would provide the certainty that does not exist under Clause 23. Further, it would provide a degree of independent oversight, which Clause 23 as it stands does not.
I say again that the ISPs caught in the middle of all of this are very concerned about the way Clause 23 is worded. They feel that they will be caught in the middle of legal battles, and it may well be that whatever we decide, these matters will end up in court anyway. Given that, the more legal clarity and specification we can put in the Bill, the better, because that will help everyone to understand their rights. Some noble Lords have also queried the appeals process, but it is important to spell out not only what that process should be, but that it should be independent. Again, our amendments seek to achieve that.
I know that the noble Lord has said that he wants to come back to this when the more detailed response to the Delegated Powers Committee’s report has been produced. I hope that our amendments have been helpful and that they may provide a working copy from which he can put his ideas together. In the meantime, I beg leave to withdraw the amendment.
Amendment 54C withdrawn.
Clause 15 agreed.
Clause 16 agreed.
House resumed. Committee to begin again not before 2.57 pm.

Brexit: New Partnership
 - Statement

Lord Bridges of Headley: My Lords, with the leave of the House, I will now repeat a Statement made in the other place earlier today by my right honourable friend the Secretary of State for Exiting the European Union. The Statement is as follows:
“With permission, Mr Speaker, I wish to make a statement on the Government’s plans for exiting the European Union. Today we are publishing a Government White Paper on the UK’s exit from, and new partnership with, the European Union. This Government have made clear that they will honour the choice made by the people of the United Kingdom on 23 June 2016. The UK will leave the European Union. This House is currently considering a straightforward Bill that will give the Prime Minister the authority to trigger Article 50 of the Treaty on European Union and begin the negotiation over our exit. That is not a Bill about whether or not we leave the EU, or even how we do so, but about implementing a decision already taken by the people of the UK in last year’s referendum. But we have always said that we would detail our strategic aims for the negotiation and seek to build a national consensus wherever possible.
This White Paper sets out those aims and the thinking behind them. It confirms the Prime Minister’s vision of an independent, truly global United Kingdom and an ambitious future relationship with the European Union. This is based on the 12 principles that will guide the Government in fulfilling the democratic will of the people of the United Kingdom. These are: providing certainty and clarity where we can as we approach the negotiations; taking control of our own laws and statute book; strengthening the union by securing a deal that works for the whole of the United Kingdom; maintaining the Common Travel Area and protecting our strong historic ties with Ireland; controlling immigration from the European Union; securing the rights for European Union citizens already living in the United Kingdom and the rights of United Kingdom nationals living in the European Union; protecting and enhancing existing workers’ rights; ensuring free trade with European markets, forging a new strategic partnership with the European Union, including a bold and ambitious free trade agreement and mutually beneficial new customs agreement; forging ambitious free trade agreements with other countries across the world; ensuring that the United Kingdom remains the best place for science and innovation; co-operating in the fight against crime and terrorism; and, finally, delivering a smooth, orderly exit from the EU.
These 12 objectives amount to one goal: a new, positive and constructive partnership between Britain and the European Union that works in our mutual interest. All of them are key, but let me highlight some of the specific issues in the White Paper. It reiterates our firm view that it is in the United Kingdom’s interest for the European Union to succeed politically and economically and so we approach the negotiations to come in a spirit of goodwill and working to an outcome in our mutual benefit. We recognise the European Union’s principle of the four freedoms and so the United Kingdom will leave the single market. Instead, we seek a new strategic partnership, including a bold and ambitious free trade agreement and a mutually beneficial new customs agreement that should ensure the most free and frictionless trade in goods and services that is possible. That will be to our mutual benefit.
As the White Paper notes, we export £230 billion-worth of goods and services to the EU while importing £290 billion-worth of goods and services from the EU every year. It also sets out how, after we leave the EU, the United Kingdom will look to significantly increase its trade with the fastest-growing export markets in the world. While we cannot sign new trade deals while still a member, we can and are preparing the ground for them. This means updating the terms of our membership of the World Trade Organization, of which the United Kingdom was a founding member. Modern free trade agreements require mechanisms to resolve disputes and to provide certainty for businesses on both sides. So the White Paper examines precedents in this area and makes it clear that we will negotiate an arrangement that respects UK sovereignty.
In terms of clarity and certainty, we recognise the need to provide it wherever we can during a period where some uncertainty is inevitable, so we will bring forward another White Paper on the great repeal Bill which will lay out our approach in detail. This legislation will mean the repeal of the European Communities Act while converting existing EU law into domestic law at the point of exit. That means that the position we start from—a common regulatory framework with the EU single market—is unprecedented. This negotiation will not be about bringing two divergent systems together. It is about finding the best way for the benefits of the common systems and the frameworks that currently enable the UK and EU businesses to trade with and operate in each other’s markets to continue when we leave the EU.
The White Paper also sets out that we will take control of our own laws, so that they are made in London, Edinburgh, Cardiff and Belfast and ensure that we can control the number of people coming to the United Kingdom from the European Union and that the jurisdiction of the Court of Justice of the European Union in the United Kingdom will come to an end. It will be for Parliament and the devolved legislatures to determine significant changes to reflect our new position.
I have said at this Dispatch Box before that there will be any number of votes on substantive policy choices. To that end, the White Paper makes it clear that we expect to bring forward separate legislation in  areas such as customs and immigration. Delivering a smooth, mutually beneficial exit, avoiding a disruptive cliff edge, will be key. A never-ending transitional status is emphatically not what we seek, but a phased process of implementation of new arrangements—whether immigration controls, customs systems, the way we co-operate on criminal and civil justice matters, or future regulatory and legal frameworks for business—will be necessary for both sides. As the White Paper says, the time needed to phase in new arrangements in different areas may vary.
As one of the most important actors in global affairs, we will continue to work with the European Union to preserve United Kingdom and European security, fight crime and terrorism and uphold justice. We must work more closely—not less—in these areas. We will seek to build a national consensus around our negotiating position, so we are talking all the time to business, civil society, the public sector and representatives of the regions. We have engaged the devolved Administrations in this process and, while no part of the United Kingdom can have a veto, we are determined to deliver an outcome that works for the whole of our country. We continue to analyse the impact of our exit across the breadth of the United Kingdom economy, covering more than 50 sectors, to shape our negotiating position.
To conclude, the referendum result was not a vote to turn our back on Europe. It was a vote of confidence in the United Kingdom’s ability to succeed in the world and an expression of optimism that our best days are still to come. Whatever the outcome of our negotiations, we seek a more open, outward-looking, confident and fairer United Kingdom that works for everyone. The White Paper is available on the Government website and I have arranged for copies to be placed in the Libraries of both Houses”.

Baroness Hayter of Kentish Town: My Lords, I thank the Minister for repeating the Statement and the House for agreeing to hear it so early, before having time to see the White Paper. It was a courtesy to me so that I can get away for the funeral of my favourite uncle, Uncle Joe. That is why we are having this debate early—so I can go and bid farewell to him—and I thank the House for its tolerance.
I also thank the Government for now—perhaps a little late—putting a White Paper to Parliament and making an announcement here. It was a tad regrettable that the Prime Minister’s two key speeches were made outside Parliament; one to the Conservative Party on 2 October and one in Lancaster House on 17 January. It is Parliament—and particularly the House of Commons—which speaks for the country, so we are pleased that the White Paper, which we have long sought, has been announced at the Dispatch Box.
The driving motivation for Mrs May and her negotiators must be the long-term economic and social well-being of the UK. Yesterday, the Prime Minister said that she led the country. I hope that she can and will, because only by exiting the EU in a way that serves all the country—Scotland, Wales, London and  the areas that have done less well from globalisation—will she truly be able to work to unite a divided country and also enable our economy, businesses, workers and consumers to benefit, while safeguarding our environment and our relationship with our nearest neighbours and close allies.
Some of what is suggested in the White Paper we can support: tariff-free, encumbrance-free and—I think the Minister said—frictionless access to the EU market; the ability to recruit talent; support for science and innovation; and, as I have stressed before, the partnership that we need with the EU 27. But we also have serious concerns about the White Paper, which will form our agenda for scrutiny here and, I hope, for the ongoing work of our EU committees, to which the Minister paid tribute earlier.
Consumers are not highlighted in the 12 principles but are vulnerable to losing compensation from cancelled flights and dangerous products once we are out of the European alert system. They will possibly be unable to use our courts to follow insurance claims for car accidents abroad, and may even face visa requirements to travel in the EU. The environment is also not one of the overarching 12 principles, despite enormous improvements to the environment made at EU level in co-operation with our EU allies. Nor is how to make good our absence from Euratom—just three paragraphs in the White Paper. We regret any departure from the customs union. We will seek to understand why on earth this is an objective, given the problems it will cause for our importers and exporters, particularly of complex products or components, and for the service sector, as was raised this morning.
I am also curious about the background to the White Paper. Is it just the Lancaster House speech but in a more normal White Paper style? Or is it what we would normally expect from a Government who know what they are doing, based on careful cost-benefit and options appraisal, with impact assessments prepared for the various options? The noble Baroness, Lady McIntosh of Pickering, asked some fairly simple but fundamental questions this morning about such assessments, but answers came there none. I ask again: will the Government, while holding any negotiation tricks safely up their sleeve, complete and publish impact assessments on the White Paper’s objectives? Will they make these available to our EU committees in a timely manner so that their reports can influence the Government’s thinking?
When will the Government publish the other White Paper, not on what is called the great repeal Bill but on what is actually a retrenchment Bill? Will there be pre-legislative scrutiny of that Bill?

Baroness Ludford: My Lords, I also thank the Minister for repeating the Statement, but I ask him from where the Government believe they derive the mandate to leave the single market, in an extreme version of Brexit. This dishonours the legacy of Margaret Thatcher, breaks the Conservative manifesto promise to stay in the single market and breaches the wishes of 90% of voters who, in a poll last November, said they wanted to stay in the single market. There was no choice on the ballot last June that asked people, “Do you want to leave the single market?”.
Therefore, will the Minister tell me why this version of Brexit, which will be so destructive to our economy and jobs, is being chosen? It will also be a great deal more bureaucratic. Any alternative to the smooth trade we get with the single market and the customs union, especially for supply chains that exist not only in manufacturing but in services and, as I learned this morning, universities, which depend on the free exchange of academics, will be more bureaucratic and mean more red tape. The Conservatives always tell us they stand for slashing red tape. Also, how do we expect to get the benefits of common systems and frameworks when we are not in the single market and customs union? I do not understand how we can derive such benefits.
The Prime Minister said in her Lancaster House speech that,
“no deal … is better than a bad deal”.
In the light of that, will the Minister please explain how the Government will fulfil the promises of certainty, clarity and a smooth orderly exit, avoiding a disruptive cliff edge? If the Government propose to walk away from the negotiations, how can they avoid a disorderly, chaotic Brexit, which is precisely what business and most of us fear? Where is the national consensus? Where are the 48% of people who voted to remain reflected in the White Paper, which I acknowledge I have not had the opportunity to read, although I read the Statement, which talks about a national consensus? I second the request for the publication of impact assessments for us to know exactly where the Government think they are taking us in concrete reality.
The Prime Minister has admitted that the UK will continue to pay into the EU budget for the sectoral benefits they expect to get. Where will the money come from for the NHS, promised by the leave campaign? It is currently about £11 billion; we all know how cash-starved the NHS is.
On the declared red line of no jurisdiction for the European Court of Justice, how will we then co-operate on crime and terrorism, and exchange data? These Benches fully support cross-border co-operation on policing and security, as well as civil justice. The Home Secretary was pressed on this in the other place by the Home Affairs Committee. It asked how she was going to get those arrangements while denying the jurisdiction of the Luxembourg court. She floundered in answering that question, as did the Minister of State in the Ministry of Justice to the EU Justice Sub-Committee on Tuesday in the area of civil justice. It simply does not add up.
I also ask the Minister a question we keep asking because it is important, particularly to this House. It is a cross-party concern that EU nationals and Brits in the rest of the EU should not be a pawn in negotiations. There is nothing whatever to prevent the Government giving a unilateral guarantee and a simplified procedure for EU nationals to stay, and for Brits in the rest of the EU. It is morally indefensible as well as economically illiterate not to do so. Can the Minister give me a real answer why that is not happening?
Lastly, if the Government really believe in British democracy, they should trust the people for a final say on this deal. [Laughter.] It is not a laughing matter.  The noble Lord, Lord Forsyth, thinks it is funny. The Liberal Democrats do not. We take democracy seriously. People have not had a chance to see the colour of the Government’s money when it comes to what Brexit will mean in detail. They—not just Parliament, but voters—should get the chance to say whether that Brexit deal is good enough or whether they prefer to stay with the European Union.

Lord Bridges of Headley: I thank the noble Baronesses, Lady Hayter and Lady Ludford, for those interesting remarks. I start by offering my condolences to the noble Baroness, Lady Hayter. I completely concur with the thrust of what she said about the need for parliamentary scrutiny. As I said at the Dispatch Box earlier, and will continue to say, the Government will provide information and the opportunity to scrutinise me and other Ministers as we proceed in the process. I look forward to the debates that lie ahead.
I am also heartened by the approach taken by the noble Baroness and her party to the overriding approach set out in the White Paper. Obviously, it is absolutely our intention to try to safeguard our economic prosperity and, as she rightly said, to represent all parts of the United Kingdom and all parts of the economy. I am delighted therefore that there is the basis of some consensus around those points.
The noble Baroness entirely legitimately asked very basic questions about the protection of consumers and of the environment. I come back with the simplest of responses: as I have said previously, the approach underpinning the great repeal Bill is to ensure that those EU laws and regulations are enshrined in UK law. I am sure we will go on to debate those points and matters of detail in the weeks and months ahead, but that is absolutely our underlying approach.
On the customs union, as I have said before, we should start thinking about the customs union in terms of its component parts. Yes, there is the component part with regard to the common external tariff and the CDCP, from which my right honourable friend the Prime Minister has said we wish to withdraw. However, there are other aspects of it, as the noble Baroness well knows, regarding the processes around frictionless trade, such as authorised economic operators and trusted trader schemes, and precedents that one could point to on the borders between Canada and North America to ensure very free and frictionless trade. Therefore, it is slightly premature to say that we are somehow going to lose all these points. We are focused on it and are determined to ensure that we achieve trade that is as frictionless as possible.
Both the noble Baronesses, Lady Hayter and Lady Ludford, raised impact assessments. I am sorry to say that on this point, at this juncture, the Government disagree on publishing an impact assessment, for the simple reason that, as I have said before, it would undermine our position at the negotiating table. I feel that we will continue to disagree on this. I strongly recommend that noble Lords think about the consequences of providing such an analysis for the negotiations that are set to come. I note that the other place voted by a substantial majority not to do anything to undermine our negotiating position.
As for the publication of the great repeal Bill, I agree with the noble Baroness that the Bill will have within it a number of measures to ensure that the Government have the powers to deliver a smooth and orderly Brexit. Here, we will have to get the balance right to ensure that this House and the other place have the opportunity to scrutinise not just the Bill but the measures that may flow from it, while ensuring that our statute book is fully operable on the day we depart. The noble Lord, Lord Hannay, raised this point in Questions earlier. I am very mindful, as are my fellow Ministers, of the need to get that balance right. We will ensure that there is as much time as possible for proper scrutiny of the White Paper and of the Bill. We will be mindful of the thoughts of noble Lords on processes that might be entailed in making sure that the statute book is fully operable.
On the remarks made by the noble Baroness, Lady Ludford, once again I am sorry: we just disagree on this point. There was a referendum. That gave this Government the mandate. There were numerous times during the referendum campaign when those on both sides of the argument made the point that what people who voted leave would be voting for was to leave the single market. I have chapter and verse here from Mr David Cameron, my right honourable friend Mr George Osborne, the noble Lords, Lord Mandelson and Lord Darling, and my noble friend Lord Hill, and, on the other side of the argument, Mr Michael Gove and the Foreign Secretary. All made it very clear during that campaign what a vote to leave would mean. It is not quite right to say, therefore, that the British public did not know what they were voting for.
The noble Baroness, Lady Ludford, made a number of salient points and raised questions which I am sure we will wish to return to in the weeks and months ahead. I will pick up just a few of them. She mentioned standards. She is absolutely right: there is an issue around standards which this Government are very focused on. We want to ensure that consumers and businesses can continue to operate and get the protection they need, and that businesses have the frictionless trade they enjoy. The standards framework is slightly more complex than some people may understand, for the standards are set by European bodies which are not part of the EU. Our membership therefore is not entirely hinged on our membership of the EU—I am thinking of CEN and CENELEC in particular. We are focused on that and on the issues around conformity assessment that arise from it, and we will obviously wish to debate them more in due course.
The noble Baroness also asked how we would avoid a cliff edge. This comes back to the fact that we have set out what we believe is a clear, rational approach to the negotiations. We believe that it will be in our mutual interest to come to an agreement with our European partners and that we will avoid a cliff edge as long as that happens. That is what we intend to do.
The noble Baroness mentioned the role of the ECJ. As she rightly pointed out, the ECJ has a role in a number of ambits. Given that we are leaving the ECJ, it will be a matter for negotiation how we can continue to have a relationship with those bodies and agencies in the months and years following our exit.
I have nothing further to add on the issue of EU nationals, but the Government have raised this issue with other EU leaders and they told us that they did not wish to start to negotiate on this point until we had begun formal negotiations and therefore had triggered Article 50. That is why it is important that we get to the point of triggering Article 50 by the end of March.
Finally, on whether there should be a second referendum, I would simply say this: there are some people in the Liberal Democrats who do not accept the outcome, who feel incredibly angry and who feel that the referendum is reversible and can somehow be undone. The public have voted. I think it is seriously disrespectful and politically utterly counterproductive to say, “Sorry, guys, you got it wrong. We’re going to try again”.

Shame!

Lord Bridges of Headley: I am very sorry they disagree with that, because those were the words of Sir Vince Cable. It is what the Liberal Democrats themselves have been saying. I entirely agree with the guru of Twickenham. I am so sorry that we disagree on this fundamental point.

Lord King of Bridgwater: Is my noble friend aware that none of us has had a chance to read the White Paper yet? We have an advantage in this House that at least we have had it before the Second Reading and can properly discuss it.
Perhaps my noble friend can respond on one point that concerns me. I was involved when we had the presidency of the European Union for six months and I know of the great organisational pressures that are put on government at such times. I do not know what encouragement we can give to the other members of the European Union, but as I look at who the next presidencies will be after Malta—in the shape of Estonia, then Bulgaria, Austria and Romania—I do not think that I am the only Member of your Lordships’ House who will worry about the ability of the presidency to cope with the great pressures it will have at that time.
On a lighter note and just to warm things up a bit, is my noble friend aware that we are approaching the 100th birthday of Dame Vera Lynn? I do not think that I am the only person who noted how improbably appropriate her songs would be for this situation. They include:
“We’ll meet again, don’t know where,
Don’t know when”,
and:
“Wish me luck as you wave me goodbye,
Cheerio, here I go”.
The last is perhaps even more to the point:
“Say that everything will turn up right,
It hurts to say goodbye”.

Lord Bridges of Headley: My Lords, we will certainly be meeting again, here, many times. On the next presidencies, my noble friend raises a very good point. I think that I am right in saying—in fact, I am sure—that the Government have offered support for the presidency of the Estonian Government if it were required. We   are obviously in conversations with all the nation states that he has mentioned. We have been supported by them in making sure that we will continue to have a role in matters of substance that come to be discussed by the EU until we leave the EU, thereby fulfilling our role as a full member until the day we leave.

Lord Kinnock: My Lords, in his foreword, the Secretary of State calls this White Paper a “plan”. Does the Minister agree that any plan worth the name requires a thorough cost-benefit analysis? Does he further agree that there is no such analysis in this White Paper or in the Statement or in the Prime Minister’s Lancaster House speech? There is certainly not a cost-benefit analysis of what operation under WTO rules would mean, what departure from the single market would mean, or what withdrawal from the European customs union would mean. All we have from the Government is the Statement this morning:
“We continue to analyse the impact of our exit across the breadth of the UK economy”.
What will they do when they produce those analyses? Keep them to themselves for fear of telling our counterparts in negotiation what we are thinking. Is it not clear that there is no compromise of our negotiating position in being honest with the British people about the cost-benefit analysis which is absolutely vital? In the absence of such a cost-benefit analysis, this White Paper is not a plan worth the name; it is a wish list.

Lord Bridges of Headley: The noble Lord makes his point with his customary passion and eloquence. I simply say that I am sorry but I disagree on that point. The British people were presented with a clear choice on 23 June. They were presented with different options. They made a choice. Furthermore, as your Lordships will know, the House of Lords European Select Committee earlier in the year said that parliamentary scrutiny of negotiations,
“will have to strike a balance between, on the one hand, the desire for transparency, and on the other the need to avoid undermining the UK’s negotiating position”.
That is our position and we will stick to it.

Lord Brooke of Alverthorpe: My Lords, chapter 9 in the White Paper sets out how, after we leave the EU, the UK will look to significantly increase its trade with the fastest growing export markets in the world. Does the Minister agree that a number of those countries already in the EU do significantly better with those export markets in the rest of the world? Why in fact are we waiting until after we leave the EU to start doing work on preparing to meet that competition? Why have we only heard from Dr Fox referring to lazy management in this country and have still not heard anything in detail from him? We have had the industrial strategy, which is as woolly a document as one could ever see—no specifics in it, no targets and no timetables. It is woolly in the extreme, like the people who have led the country out of the EU. When can we expect to get moving on a specific, timetabled and detailed analysis of how we are going to compete in the rest of the world? We do not need to wait until after we have completed the negotiations.

Lord Bridges of Headley: There are two separate points there. First, what are we doing to help UK businesses export, as we speak? There is an enormous amount of work going on on that front. The signs are already there that we are beginning to get great progress in our export markets around the world. That work continues. As regards the actual point that I think the noble Lord is getting at about the negotiations, he will be well aware of the duty of sincere co-operation, which ensures that we are therefore not able to start formal negotiations with non-EU countries until we have left the EU. The noble Lord may have a sense of impatience about that—I can sense it—but the reality is that we need to approach these negotiations in good faith and good will towards our European partners, and not seek to tear up or undermine the obligations that we face as a member of the EU today.

Viscount Waverley: My Lords, on the question of trade agreements, given that there is a trend for intra-regional trade, has there been consideration to starting a conversation with regional bodies such as the ACP, Mercosur, ASEAN and the Commonwealth? All the bilaterals engage with those regional bodies. Just to give an example, I encourage the Government to look at the Central American Association Agreement, which is an EU association agreement which encompasses trade, and to bring it into Parliament, because it has been stuck for a very long time without coming before the House.

Lord Bridges of Headley: The noble Viscount makes an extremely good point. Indeed there are a number of organisations like Mercosur and certainly the GCC which my noble friend Lord Price has I am sure been in contact with. We will continue to have conversations with those groups as well as individual member states. I would be happy to discuss that point with him in more detail.

Lord Blencathra: My Lords, has my noble friend seen the latest report from TheCityUK stating that the EU has been a straitjacket on the City of London, which will have a once-in-a-lifetime opportunity to now do business with the whole world? The EU’s own leaked report from the monetary affairs committee says that the EU has to do a workable deal with the UK, because it is absolutely vital for all Governments in the EU to get access to the City of London. In these circumstances, will my noble friend tell the remaining remoaners to start having faith that this is a great country, and we can be an even better country once we are outside the straitjacket of the dying and declining EU?

Lord Bridges of Headley: My noble friend makes a good point. There is a growing realisation across many financial services, both in the City and elsewhere, about the means by which we can come to some workable arrangement that I hope is to our mutual benefits. I remind your Lordships of what the Governor of the Bank of England said a couple of weeks ago about the risks that Brexit poses:
“there are greater financial stability risks on the continent in the short term, for the transition, than there are for the UK”.
As my noble friend says, there is a growing realisation on these points and of how we might come to some workable solution in the future.

Baroness Symons of Vernham Dean: My Lords—

Lord Taylor of Holbeach: Sorry, my Lords, it was the Lib Dems’ turn.

Baroness Smith of Newnham: My Lords, is it not somewhat hubristic of the United Kingdom to offer to assist the Estonian presidency of the European Union, when we ourselves said that we no longer wanted to hold the rotating presidency of the European Union?
The key question that I wanted to ask was about the great repeal Bill—the great retrenchment Bill. Can the Government assure us that they are thinking through the implications of implementing all the regulations that are in place, bearing in mind that many entail reciprocity and the jurisdiction of the ECJ? How will we deal with that? Will the Bill look at that?

Lord Bridges of Headley: I am not going to go into further detail on that specific point now. As I have set out in the Statement, we will publish a White Paper and the noble Baroness is absolutely entitled to raise that point. Let us do that when we have the White Paper in front of us.

Lord Wigley: My Lords, I seek clarification of the Minister’s words—words that were on page 35 of the White Paper and on page 6 of his Statement—
“This negotiation will not be about bringing two divergent systems together. It is about finding the best way for the benefits of the common systems and frameworks that currently enable UK and EU businesses to trade with and operate in each other’s markets to continue when we leave the EU”.
Do those common systems and frameworks not in fact amount to the regulations of the single market? In fact, is this not a recognition that the single market will be our target?

Lord Bridges of Headley: Well, it is just a simple recognition that when we bring the EU acquis into UK law, we will therefore have exactly the same systems on both sides of the Channel. Then this House and the other place can in the weeks and years ahead decide how best to proceed.

Baroness Symons of Vernham Dean: My Lords, on page 63 of this White Paper, the Government say that they,
“remain committed to European security”,
and wish still to,
“add value to EU foreign policy and security policy”.
It goes on, of course, to talk about the civilian missions in Kosovo, Georgia and Ukraine, and says that those missions increased European stability. Is it the Government’s intention that, after leaving the European Union, we will continue to participate in common security and defence policy—not just good will but operations which the White Paper itself acknowledges have been so important?

Lord Bridges of Headley: The noble Baroness, again, makes a very good point. It is clear that a number of the operations under way confront significant challenges that are likely to continue way into the future. I am not getting into detail about how we can best continue those levels of co-operation but, as I have said before  at this Dispatch Box, doing so will clearly in very many cases be in our national interest, as it will be in Europe’s interest.

Lord Cormack: My Lords, as a follow-up to the question just asked by the noble Baroness, I say that I am delighted that we have the words “new partnership”. Can we please enter these negotiations as talks with friends and allies? There is far too much underlying hostility. That must not prevail. We are to work with our friends and allies in a different way and capacity; some of us deeply regret that, but that is gone. Let us make sure that this is a new and positive chapter. Can my noble friend assure me that that will be the hallmark of the talks?

Lord Bridges of Headley: I completely agree with my noble friend. The whole spirit behind the White Paper and the Government’s approach is one of building a new partnership on the basis that there will be, as I said, issues on which it is absolutely in our national interest and those of member states right across Europe to collaborate and co-operate in the months and years ahead, and to enable our businesses both in the UK and right across Europe to continue to trade freely. As I also said, we enter these negotiations very much in a spirit of good faith and good will.

Lord Lea of Crondall: My Lords, would the Minister acknowledge—

Lord Taylor of Holbeach: I am sorry but it is the turn of the Liberal Democrats. If we are taking questions from around the House, it is the Liberal Democrats’ turn.

Baroness Scott of Needham Market: My Lords, first, I thank the Government for publishing the menu after the House of Commons has finished its dinner. I have a specific question about our withdrawal from the Euratom treaty, which has provided the framework for civil nuclear power and the management of nuclear waste in this country for the last 40 years. What communication have the Government had with the industry to assure themselves that the future of nuclear power on which their energy policy depends is still secure? What estimates have they made of the cost of creating a brand new regulatory framework to replace the one we are leaving behind?

Lord Bridges of Headley: All I will say on this point is that obviously we have had extensive consultation and talks with the nuclear industry. It remains of key strategic importance to the country and we have been clear that this decision does not affect our aim of seeking and maintaining close and effective arrangements relating to civil nuclear co-operation, safeguards and safety with Europe and the rest of the world.

Lord Lea of Crondall: My Lords, would the Minister acknowledge that it was a gross exaggeration for him to claim that our Front Bench statement represented a consensus about the White Paper? For example, on the question of the single market, the Government’s position is that they will not continue membership of it. The Statement repeated the catchphrase that they will seek an ambitious and comprehensive trade agreement with  the EU. First, is that not what we have already? Secondly, are there not inevitably all sorts of attendant conditions to do with any trade agreement that are very similar to the arrangement with the arbitral role of the much-maligned European Court of Justice at present?

Lord Bridges of Headley: My Lords, I should set out that we intend to forge a new partnership with the EU that has different hallmarks from the relationship at the moment. To give just three examples, in our new relationship we will have the ability to take control of our borders, to be outside the ECJ and to be able to forge new free trade agreements with non-EU countries. That is the basis on which we will proceed.

Lord Forsyth of Drumlean: My Lords, I welcome the fact that early on in the White Paper, Chapter 3 is headed “Strengthening the Union”. Did my noble friend see the statement made earlier this week by Mr Esteban González Pons, the leader of the ruling Spanish MEP delegation in the European Parliament? He said that if Great Britain leaves the EU, all of Great Britain leaves the EU completely. We know that Spain has problems in terms of Catalonia and the Basque country and that they cannot accept any kind of special solution for Scotland. Will my noble friend use the opportunity of the Joint Ministerial Committee to point out to the First Minister of Scotland that she must accept the result of the referendum, that the Spanish and others would veto any special deal, and that she should stop embarrassing Scotland by putting forward unworkable and confused policies and instead stick to her day job of trying to run a failing Administration?

Lord Bridges of Headley: My noble friend makes his remarks in his usual forthright manner. Clearly, the vote on 23 June was a vote for the whole of the United Kingdom. As the Prime Minister said, and I repeated today, our approach will be to negotiate in the interests of the entire United Kingdom, no part of which has a veto. We are looking at the proposals that my noble friend referred to and I hope that we will continue to have constructive conversations in the JMC.

Earl of Sandwich: My Lords, one subject that is not among the 12 principles and which I do not think has been covered in our own debates or reports is international development. The noble Baroness, Lady Symons, quite rightly brought up European security and the Minister said that he could not disclose any details. Could he undertake to talk to his colleagues about international development? We have a substantial programme with Europe and want to know, in advance, what will happen to it.

Lord Bridges of Headley: The noble Earl makes a good point and I am happy to meet him to discuss it. My only point in response is that I do not wish to go into the mechanism of how we might achieve our aim. As I have said many times, where the national interests of the United Kingdom and the interests of member states across Europe coincide, we will obviously proceed with an open mind and will be willing to co-operate and collaborate where possible.

Lord Clinton-Davis: What happens if the Minister’s optimism is somewhat misplaced? Does he agree that, in the event that he is wrong, this country must go its own way? In particular, might he form the view that the country is best served by being in the EU? I have been a member of the Commission for a very long time, as has my noble friend. Is it not important that an alternative view is put forward to the House by this Minister? I am not sure whether he is capable of that, but I think he will have a duty to put it forward eventually.

Lord Bridges of Headley: My Lords, I think the noble Lord was suggesting that we somehow put forward a view to stay within the EU—if I understand him right. Obviously, that decision was made by the British public on 23 June.

Brexit: Disabled People
 - Question for Short Debate

Baroness Scott of Needham Market: To ask Her Majesty’s Government what assessment they have made of the impact on disabled people of the United Kingdom’s withdrawal from the European Union.

Baroness Scott of Needham Market: My Lords, I am very pleased to have secured time for a debate this afternoon on the impact that leaving the EU will have on people with disabilities. During the referendum campaign, little was said about this matter and I have heard very little since. But the implications for millions of disabled people and their families could be profound. The choices that will be made by the Government over the next few years about how we leave and what they choose to prioritise will be of enormous significance. I am grateful to the Papworth Trust for its thorough and calm analysis in its publication of last autumn, Brexit: What Next for Disabled People?
I declare an interest as a member of the advisory board of the National Council for Voluntary Organisations, as a vice-president of the Local Government Association and as patron of a local charity, Ace Anglia, which provides support and services to people with learning disabilities.
This is not the place to introduce a debate on the impact of Brexit on our economy overall. Indeed, it may be years before we can make a full assessment of that. But, if it is anything like as bad as some of us fear, the consequent deterioration in public finances could significantly reduce the amount of money available for benefits to disabled people and to the public services on which they are often dependent. The charity Scope estimates that 400,000 working-age disabled people are dependent on social care. It also reports that disabled people spend an average of £550 extra a month as a result of their disability. Clearly, these people have much less financial resilience to withstand a downturn and are more dependent on public services.
Of immediate concern is the loss of grants from European structural funds. According to the Academic Network of European Disability Experts, 19% of all European social fund grants are spent on projects  directly supporting disabled people. To put that into context, the Papworth Trust alone received £7 million from that source between 2007 and 2016. The future sources of funding beyond 2020 are completely unknown. A quick glance at the White Paper published earlier suggests that the Government will meet some of these commitments—but only until 2020. That is a very short-term planning horizon.
Supporters of Brexit have always argued that the UK itself should be responsible for this kind of spending, not the EU. That is fair enough, but then we should expect to see some allocation of funds from the savings, whatever they may be, of no longer being members. To assist charities and other bodies with their forward planning, the Government should begin to offer some clarity about the post-2020 scenario.
There is a much deeper concern that a rush to deregulation, as a matter of either political choice or economic necessity to improve competitiveness, will reduce the statutory protections available to disabled people, especially with regard to employment and access rights. Anti-discrimination laws, while enacted by this Parliament, have their roots in EU law and could be removed by this or a future Government should they choose. The Government have set out, in outline at least, that their approach to unravelling the past 40 years of lawmaking in a European context will be the rather misnamed great repeal Bill. It seems to me to be a sensible approach to keep hold of the legislation that we currently have and to review it over time. This must be with proper parliamentary scrutiny and not just delegated to Ministers—although I am not convinced that the Government fully understand yet what a massive task this is, and the amount of Civil Service and parliamentary resource that will be required to perform it.
I will give some examples of what I mean. The blue badge scheme for parking concessions for people with disabilities is standardised across the EU. There is a comprehensive package of rights for disabled travellers on air and rail services. The charity Guide Dogs has pointed out to me that we have EU-mandated disability awareness training for bus drivers, and rules that ensure that electric and hybrid vehicles are audible. These are important matters and we need to make sure that they are not accidentally or deliberately lost in a wholesale bonfire of EU law.
The employment equality framework directive is a major component of EU labour law and combats workplace discrimination on the grounds of disability, as well as gender, age, race and sexual orientation. It will be a matter of choice for the Government as to whether they wish to hold on to these protections and, crucially, to what extent they are prepared to work with the groups representing the interests of disabled people to make sure that their needs are fully understood.
We are all aware that there is a social care crisis in this country, which is completely interwoven with the serious problems facing the National Health Service. There is no time in this introduction to detail concerns about the loss of EU migrants to the health and social care sector, although other noble Lords may have more to say on this. An estimated 130,000 EU citizens are working in the health and social care sector, so this  is a major issue. There is already evidence that a combination of uncertainty about future arrangements and the increased instances of racially motivated attacks is making it harder to recruit into this sector. The fall in the value of the pound is making the UK a much less attractive option. Given that there is already a vacancy rate of around 5% in the care sector because of the low pay and unsocial hours, any deterioration here is a matter for concern. The charity Sense estimates that currently 108,000 learning disabled people with moderate to severe needs receive no support whatever. It would be catastrophic if this were to get any worse.
Health is of course mainly a national competence and there has never been an attempt to provide uniform services across the EU 28. However, there are some rights that exist across the EU that may now come into question. Because disabled people are more likely to use healthcare services, they could be affected more. All EU citizens can access each other’s health services free of charge using the European health insurance card. Will a continuation of this scheme be a priority for the Government? The UN estimates that around 1.2 million British citizens live and work in the EU. If we restrict the rights of EU citizens to the NHS, of course the same will happen to ours.
What will happen to the large number of pensioners, some of whom are disabled, currently accessing health services in places such as Spain and Cyprus? If the scheme is not to be continued, the Government will need a massive campaign to make sure that British tourists have adequate health insurance when they travel. For people with disabilities, getting such insurance can be very difficult and costly, and the Government will need to take this up with the insurance industry.
I understand that there is an NHS Europe transition team. I would like the Minister to assure us that disabled people are being consulted and involved in the thinking about what the implications might be of the different outcomes and options being considered by the Government. There are many tricky issues to be considered and resolved, and some of them will be part of the terms of departure that we agree with the EU. Others, such as co-ordination rules for social security, can be done bilaterally and could, if we are not careful, result in a bureaucratic nightmare.
We will still be Europeans and it makes no sense to turn our back on everything. It is estimated that there are 70 million disabled people in Europe, and a well-established network of research and development projects in which UK organisations have been active. It is an absolute priority to remain within those networks and funding programmes if we are not to lose the very real progress that we have made in understanding and treating the disabilities themselves and, crucially, in helping disabled people to live more fulfilled lives.

Lord McKenzie of Luton: My Lords, we should thank the noble Baroness, Lady Scott of Needham Market, for initiating this debate. While the referendum campaign provoked some discussion around the significance for disabled people of remaining in or leaving the EU, these matters were not centre stage in our national debate. There was neither a specific reference  to what Brexit may mean for some 10 million-plus disabled people in the January pronouncement of the Prime Minister nor a single word in the White Paper that has been issued today.
We are in the impossible position of being asked to start the process of exiting the EU without any clear idea of where it will end—except that the Government have given up on membership of the single market and the customs union. History will reflect with incredulity on how we got into such a mess. There is real concern that the future for the UK outside the single market will make us poorer as a country than we would have been over the long term. The OBR has made the judgment that any likely Brexit outcome will lead to lower trade flows, investment, net inward migration and potential output. All this has adverse implications for the public finances and our social security system, already battered by austerity.
I agree with the noble Baroness, Lady Scott, that we should be grateful to the Papworth Trust for its briefing on the key issues affecting disabled people and the EU. We should acknowledge the importance of the EU to date in bringing down the barriers faced by disabled people—for example, in improving access to public buildings and transport, and supporting employment programmes. Indeed, 19% of ESF grants are spent on projects that directly support disabled people. This is not to deny the role of the UK in leading the way on disabilities legislation but to recognise that the EU directives and the treaties that we have signed underpin discrimination laws.
Once outside the EU, the UK will lose the underpinning of EU equalities legislation and the oversight by the European Court of Justice. Can the Government at least confirm their intention on membership of the Council of Europe and the European Court of Human Rights? Commitments to enshrine all existing EU legislation into domestic law, the so- called great repeal Bill, are welcome but this does not mean that these rights will be sustained over time. Moreover, being outside the EU means that the UK could be left behind on future developments, such as the planned EU-wide European Accessibility Act, for example. Would the Government support embedding the UN Convention on the Rights of Persons with Disabilities, which we ratified, into domestic law?
We know that disabled people are heavily reliant on the NHS and social care services, and we know that these services are heavily dependent on migration from the EU. We also know that there are horrendous recruitment problems in the sector. Restrictions on free movement will only exacerbate these. It is imperative, therefore, that the status of EU nationals working in the UK is clarified as a matter of urgency, to help retention. There is also a need for a clear strategy for the future.
We should not overlook the capacity issues in all of this—for the Executive, Parliament and the Civil Service—specifically in relation to plans for EU legislation that is currently directly applicable but which has to be converted into UK law. The House of Commons Library note suggests there could be some 5,000 pieces of legislation. I ask the Minister to provide us—in due course but, I hope, as soon as possible—with a list of  all those which touch on matters relevant to disabled people. When ministerial red boxes are being stuffed full of Brexit matters, who will focus on delivering the halving of the disability employment gap?

Baroness Campbell of Surbiton: My Lords, leaving the EU is very much a disability issue, with hidden risks that were not aired much during the referendum campaign. Therefore, I am most grateful to the noble Baroness, Lady Scott, for introducing this really important debate.
As time is short, I will concentrate on the area I am most familiar with: the workforce which facilitates independent living for disabled people such as me. I declare an interest as someone who has employed personal assistants from at least 10 EU countries during the past 25 years. I am not unusual. There are thousands of disabled people who do the same. Our personal assistants—some call them carers—are a mixture of UK and EU nationals. They are crucial to our independence and our freedom to enjoy a private and family life, to work, to socialise and to raise children. Our employees are funded mainly by social care or healthcare personal budgets. During the past 30 years, increasing numbers of disabled people have become employers.
When preparing for this debate, I searched for data on how many EU nationals were employed as personal assistants. I contacted the United Kingdom Homecare Association and independent living PA agencies, such as Independent Living Alternatives and PA Pool. No specific data were available but we know there are more than 70,000 EU citizens working in social care. I then contacted disabled employers through social media platforms to find out more about their reasons for seeking personal assistants from EU countries.
Everyone I heard from said first that the pool of potential UK employees was drying up, yet demand for care workers continued to rise. The EU workforce was therefore an essential supplement, and all were concerned about moves to restrict it. Other reasons given for recruiting EU nationals were a strong work ethic and reliability, and the fact that the job tends to attract single people, who, as a rule, are found to be more flexible in their working hours, giving much-valued opportunities for spontaneity. They are keen to fill live-in employment positions. This helps disabled people who live in rural villages where local employees are limited. Some commute to and from their home countries between work stints. Such flexibility is a win-win situation for both employers and employees.
I spoke also to John Evans, a quadriplegic man and pioneer of independent living for disabled people in the UK and internationally. He said:
“I have been free from residential care for 34 years, employing my own PAs who support me to have full control of my life. They have come from 15 different EU countries. Without their support I could not do my work at home and abroad. If the Government does not make some kind of arrangement to protect our access to the EU PA workforce, I will lose my freedom again”,
and he will have to return to residential care. We constantly hear about the threat to the NHS if restrictions to work in the UK are tightened. The PAs and carers  employed by thousands of disabled people must be accorded the same attention; otherwise, the current social care crisis will worsen and disabled people will lose the right to independent living, as set out in Article 19 of the UN convention.
The Equality and Human Rights Commission shares my concern. In its evidence to the Joint Committee on Human Rights’ Brexit inquiry, it said that any change in Immigration Rules,
“should be subject to a rigorous equality and human rights impact assessment”.
Will the Minister assure the House that this assessment will be carried out rigorously and shared with Parliament? Will he also guarantee that disabled people and their organisations will be thoroughly involved in any Brexit developments regarding access to the EU workforce? Our independence depends on it.

Lord Addington: My Lords, there are certain debates in which you discover quite happily that someone else has done the heavy lifting for you. I thank my noble friend for that. What strikes me about this debate is that it is not about the big acts of principle because when it comes to disability, this Chamber—and, indeed, the whole British Parliament—handles it pretty well. It is the small things. It is the stream of regulation that we are always struggling with to make those big acts of principle count.
I remember when we were dealing with small concessions in regulations about transport people from all Benches coming up to me and saying, “It is really inconvenient to make sure that the displays at stations are the right size, that we have the easiest tables to fold down to change a baby on, that the toilets are accessible”—there is always a good reason why not. That gets easier and easier to ignore when you have a smaller machine driving it, when you have people saying, “It is very inconvenient regulation for me”. If you do not have real weight and determination behind it, or an energy, it gets picked off.
People will say, “That is red tape. It gets in the way”. One of the many things I have covered in your Lordships’ House is health and safety. I came to the conclusion that everybody was against health and safety regulations until their child was up a ladder. It will be inconvenient for you until you have a disabled child or a disabled parent who needs that support. We need a clear guide and energy here, with the Government prepared to commit time, resources and, indeed, political capital to standing up to people like that. It is going to get more difficult because the EU is a convenient punchbag, let us face it. We can duck round it and say it is the EU’s fault, not ours—“We have to do it, I’m afraid”. If anybody has not seen that here, I can take them through a few events. I will not do that now because no one has annoyed me quite enough to do it. But that happens and unless the Government are prepared to publicly start taking on the responsibility for those unpopular small decisions with certain sectors, we are going to fall down here.
The Papworth Trust report points out that the drive from Europe means there is a focus. You have to come behind it grumblingly, saying, “Oh, I wouldn’t do this  but I appreciate you have problems”. You have to take it on. Unless the Government are prepared to look for a cross-party consensus about how we go about this, we will get into trouble. The disabled are one group but others will suffer as well. We must take on the fact that this unpleasant grind to make sure that things are accessible and easy to use is there. If we do not do that, we will jump from events where we have a big, dramatic event—“We’ll make a change. Oh, that doesn’t work. It’s out of date, we’ll have to go back”. That is inefficient and inconvenient for those who happen to have their lives disrupted in a large way in that process.

Lord Low of Dalston: My Lords, I thank the noble Baroness, Lady Scott, for securing this debate and giving us the opportunity to discuss this important question. When we debated the question of withdrawing from the EU last June, I said it was clear to me that disabled people would get a much better deal by remaining within the EU. In my experience, it has always been possible to get much more for disabled people from the EU than from our own Government, of whatever complexion. Now that we have decided to leave, it is important to make sure that the benefits disabled people presently derive from being in the EU are maintained by the United Kingdom.
Most of the benefits come from the single market. To take just three examples, first, in 2014 disabled people successfully influenced the revision of the EU’s public procurement directive. Accessibility is now a mandatory criterion for all public tenders above a certain financial threshold. According to the European Commission, public procurement accounts for 14% of the EU’s GDP. At home, according to a 2015 House of Commons briefing paper, in 2013-14 the UK public sector spent a total of £242 billion on procurement of goods and services—33% of public sector spending. In sectors such as energy, transport, waste management, social protection, and health and education services, public authorities are the main buyers, so public procurement regulations offer a substantial lever for improving accessibility and bringing about change, just as they did in the United States many years ago.
Secondly, on the accessibility of the world wide web, despite strong resistance initially from national Governments, we now have a directive that ensures the accessibility of all public sector bodies’ websites. It covers their mobile applications and includes an enforcement mechanism. This means that disabled citizens can access e-government services right across Europe. In conjunction with the previously mentioned new rules on public procurement, this directive ensures that industry delivers digital solutions that are accessible to all. We already have European standards for accessible ICT, but technology is moving very rapidly in this area and it is good to have this new legislation to ensure that disabled people are able to keep up.
Finally, on accessibility of goods and services, the European Commission has now tabled a proposal for a directive that would harmonise accessibility requirements across the EU for a wide range of goods and services, including smartphones, computers, ticket machines, ATMs, retailers’ websites, banking, e-books and associated hardware such as Amazon’s Kindle, and audio-visual  media services and related equipment. Travel-related information is also included. Items not complying with the standards will not be able to be brought to market. This proposal does not include everything one would want and is still under negotiation—it does not include white goods such as washing machines and microwaves, for instance—but it goes much further than anything we have in this country. In the UK, the Equality Act does not apply to manufacturers and manufactured goods.
The noble Baroness, Lady Scott, referred to concerns that withdrawal from the EU will put at risk the implementation of disability awareness training for bus drivers as well as measures to ensure the audibility of electric and hybrid vehicles. Regulations requiring bus drivers to undertake disability awareness training are due to come into effect in 2018. The requirement was due to come into force in 2013, but the Government made use of a derogation to delay it. It would indeed be a perverse result of Brexit if, instead of being just delayed, the regulation was lost altogether.
The EU regulation on sound levels of motor vehicles would mean that all new quiet vehicles must be fitted with an acoustic vehicle alerting system, or AVAS, by 2021. But again, it is now unclear whether this regulation will be incorporated into UK law once the UK has left the EU. Will the Government commit to the introduction of disability awareness training for all bus drivers and to ensuring that all quiet electric and hybrid vehicles are rendered audible, with a clear deadline for installing acoustic vehicle alerting systems on all quiet vehicles?
From the point of view of disabled people, there can be no doubt that it would make sense for the UK to remain a member of the single market. If we do not, and if we are to safeguard the interests of disabled people, we need, on Brexit, to bring across as many of the benefits of the single market as possible. I trust that the great repeal Bill will do this and that we will choose to hang on to as many of the benefits thus transposed as possible.

Bishop of St Albans: I too am grateful to the noble Baroness, Lady Scott, for giving us the opportunity to reflect on this important subject. For many years, the European Union has been an important driver of disability rights in the UK, helping to improve disability access and strengthen non-discrimination laws right across Europe. It was the European Union that ensured non-discrimination laws were extended to smaller businesses, and the European Court of Justice which extended rights to carers and those in relationships with a disabled person, to name just two examples. With the proposed European Accessibility Act still some time away from implementation, I hope the Minister can understand the fear expressed by many in this House and outside it that a post-Brexit UK may start to fall behind its European counterparts when it comes to disability rights.
Britain, of course, has a proud history of disability rights, but that is no guarantee of future progress. Indeed, in this time of cuts and savings, there will be great pressure on Her Majesty’s Government to ensure that those with disabilities take their “fair share” of  the cuts. Despite the admirable rhetoric on cutting the disability employment gap, it is significant that one of the few policy changes of substance thus far has been to dramatically cut the benefit entitlements of disability benefit claimants in the work-related activity group. The Government’s policies, such as including disabled people within the underoccupancy charge and restricting the eligibility criteria for personal independence payments, are further trends that make many of the disabled people I have spoken to fearful for the future of disability rights outside the EU.
As we move towards Brexit, it is absolutely essential that Her Majesty’s Government give disabled people confidence that the UK will be a world leader in disability rights, showing the way forward rather than lagging behind. Although we have made significant progress over recent decades, there is still a long way to go in securing full accessibility and rights for disabled people in our country. This can be a particular problem in rural areas—I declare my interests as president of the Rural Coalition—where many people with disabilities still struggle with accessing basic services, particularly public transport. People in rural areas can also struggle to access adequate care services, something which may become even harder if and when the UK Government introduce immigration restrictions on those EU residents who make up a significant proportion of our caring workforce.
I realise that the Minister will today seek to reassure the House that any existing EU disability rights legislation will be incorporated into British law through the great repeal Bill. But I hope he will be able to go further than that, and reassure us that Her Majesty’s Government recognise there is still a huge amount of work to do and that there is a determination to take this forward.

Baroness Masham of Ilton: My Lords, I thank the noble Baroness, Lady Scott of Needham Market, for securing this debate. Many people are tired of hearing that Brexit means Brexit. This debate may give some insight into what disabled people are thinking. It seems a long time since I made my maiden speech on what became the Chronically Sick and Disabled Persons Act 1970. I have been surprised by how much legislation there is concerning disabled people incorporated in the European Union. Britain has helped to lead the campaign for better protection for disabled people. It will be a tragedy if, ostracised from Europe, we become an isolated island. As far as disability issues are concerned, I feel that Europe needs us and we need Europe.
I hope that the Minister will give us some reassurance today. Many disabled people are frightened at this time. Diabetes can be a serious disability if not controlled. Will such research as the DIAMAP project, the Alliance for European Diabetes Research, funded by the European Commission, still be available for members from the UK? The European Commission funds many important research projects to find ways of preventing disability. Does Brexit mean that we will no longer be part of the European Disability Strategy 2010-2020, a renewed commitment to a barrier-free Europe? Will the blue badge for disabled drivers or passengers, a European project, still be available?
I am very concerned when I hear members of the Government say that we want to let in only the brightest people when Brexit takes place. This will be a disaster for disabled people who need help. We have many disabled people, some of whom can work, but they need carers who can help with personal care and mobility. We do not have enough British people who want to do such jobs. We need the many young, fit people who come from the EU who are honest and want to work. They do not need to be high-fliers but they need to feel wanted and to be cherished. Otherwise, with a low pound and abuse, they will not come. The Government have a responsibility to enable disabled people to live as independent lives as possible.

Lord Borwick: My Lords, I leap briefly into the gap. I declare an interest as trustee of several charities, notably the Ewing Foundation for deaf children. Brexit changes Britain, but we do not know exactly how. The negotiations have barely started; all we have are our worries and our hopes. While we in this House will in future be considering a positive mountain of regulations, we know that we will have the benefit of many Members with personal knowledge of disability. I doubt there is a legislative chamber in the world with such effective and numerous representation of disabled people. The further point, however, is to make certain that the voice and opinions of disabled people are heard and thought about when regulations are formulated, not just at this legislative stage.

Baroness Thomas of Winchester: My Lords, this is a timely debate. Thanks to my noble friend Lady Scott, we have heard forcefully this afternoon some of the real worries about Brexit both from disabled people themselves—I am one—and others. Perhaps the main one concerns what will happen to the thousands of personal assistants from the EU who give top-quality care to severely disabled people if there is no free movement. Who knew, before the referendum, that Brexit might mean that all the EU directives, which have made life so much better for disabled people travelling throughout Europe, for example, or even accessing public sector websites, might have to be negotiated all over again? Or will they? Who knows?
There is now a terrible uncertainty about what will happen in the future. Will we have reciprocity for all the working people from the EU who are settled in this country to stay after Brexit? This is perhaps the greatest worry for many disabled people, as they are now used to the high standards and attitudes of many EU care workers, as the noble Baroness, Lady Campbell of Surbiton, has said. I must straightaway ask the Minister whether he thinks there is any chance of an exemption from the restriction on the free movement of labour for staff in social care and NHS services. I repeat my noble friend’s question about whether there are any disabled people on the NHS Europe transition team.
The word “reciprocity” is very important in the field of social security as well as care. There has been a long-standing provision in EU law to co-ordinate social security schemes for people moving within the EU and  EEA. This is a very important protection for disabled people who may want to reside in other EU or EEA member states. These co-ordination rules, such as allowing a person’s contributions paid in one country to count towards entitlement to benefit in another country, or allowing certain benefits to be taken abroad with them, are there to support free movement. What will happen in the future? What about those people who have lived and worked in more than one member state and paid national insurance in those countries?
At present, a person who moves from one member state to another has access to benefits in the host country if they are economically active or can support themselves. Working EU and EEA migrants are entitled to in-work benefits on the same basis as nationals of the host country, but this could all change. Will the Minister say which department is in charge of these negotiations? If there is no certainty for many months, quite a lot of disabled UK nationals living abroad are likely to return to the UK, where they may well need care services and quite possibly supported housing, thus adding to the strain that services are experiencing.
I turn briefly to the great repeal Bill, which, as we know, will annul the European Communities Act 1972 and transpose EU law into domestic law. The difficulty will come when the Government decide which laws will be scrapped altogether. The wretched Red Tape Challenge does not give us any confidence, as the report of the Equality Act 2010 and Disability Committee makes clear. This is about regulations being burdensome; it does not seem to matter that their disappearance might make life more burdensome for disabled people. So we are particularly concerned about hard-won rights in the fields of, for example, product design, air and rail travel, employment, building accessibility, public sector website accessibility and many others. Can the Minister assure us that disabled people will be in the forefront of negotiations on any matter that affects them directly?

Baroness Sherlock: My Lords, this fascinating brief debate serves to highlight the enormity of the task facing both the Government and Parliament in the months and years ahead, as we seek to understand and then deal with all the implications of the decision to leave the EU. Will the Minister tell the House how the Government propose to enable us to scrutinise the issues as they start to emerge? Will there be pre-legislative scrutiny of the great repeal Bill to ensure Parliament is sighted on the areas where the Government are unable or unwilling simply to transfer current provision across, or where, as various noble Lords have mentioned, there is a need for some regulatory or enforcement mechanism that is currently Europe-wide?
Like my noble friend Lord McKenzie, I read the White Paper carefully—I even searched the electronic version—and I could not find the words “disabled”, “disabled people” or “disability” anywhere in it. Will the Minister tell the House how much thinking the Government have begun to do on the impact on disabled people of the decision to leave the EU? Has his department developed a strategy to engage with key stakeholders in the field and, through those stakeholders, directly with disabled people, both to  consult them and to reassure them that it is engaged with the issues? My noble friend Lord McKenzie made some important points about the commitment to enshrining long-term protections for disabled people in our law. Will the Minister also commit to enshrining in law those protections for disabled people that currently derive not from EU legislation but, for example, from judgments of the European Courts?
The question of transport was raised by the noble Baronesses, Lady Scott and Lady Thomas of Winchester, and the noble Lords, Lord Addington and Lord Low, among others. I should be very interested in the answers about blue badge recognition and accessible transport, raised by the noble Lord, Lord Low.
The matter of health and social care is absolutely crucial. Disabled people have a higher than average need to access health and social care. We have heard already about how many disabled people will be accessing health services in other EU nations and are very anxious about what will happen next. The noble Baroness, Lady Scott, mentioned the EHIC. What are the Government doing about that? Are they beginning negotiations on this—how high on their priority list will it be? If not, what will they do to enable disabled people to obtain appropriate insurance care? Have they begun discussions with the insurance industry or representative bodies in the financial services sector?
The question of social care is the one that exercised noble Lords most. We have heard all kinds of figures. The one I drew out from the Skills for Care website suggests that there are currently 90,000 EU nationals working in adult social care in England alone—some 7% of the workforce. Can the Minister give the House a definitive figure for how many non-UK EU nationals are working in social care, and tell us what he intends to do to ensure that that workforce is protected? Do the Government have a plan to enable those people to carry on working? Obviously, I think they should allow all EU residents who are settled here to carry on, but what are the Government doing specifically about social care?
I am grateful to the noble Baroness, Lady Campbell, who always takes these issues and gives them such a clear reality when she describes her own experience of what it means in practice for one after another EU national to come in. The point she made is crucial. This is not a technicality but the difference between disabled people living independent lives and not living independent lives. The Minister should hear how concerned people around the House are about this. What do the Government plan to do?
The noble Baroness, Lady Thomas, raised the really important question of social security entitlements. What do the Government plan to do about the entitlement to benefits of disabled EU nationals who have been resident in the UK? Conversely, do Ministers have a plan for dealing with the benefit entitlement of disabled UK citizens who have been ordinarily resident in another EU state? If they suddenly have to return to the UK, will they be entitled to full support? What comes through crediting towards benefit entitlement if time is spent in another EU country?
I would be interested to hear the answer to the question on ESF funding, and how disability organisations will be protected in the longer term, past 2020. We  have only just begun to scratch the surface. The House needs to hear from the Minister today, first, some hard answers to questions. The Government have had seven months to think about these issues, and we look forward to hearing what they have to say. Secondly, we want to know that the Government are taking this seriously. It is not just a question of each department looking at regulations in silos. Who in government is taking responsibility for having a strategic look at the impact of Brexit on disabled people as a whole, making sure that nothing is missed and, ideally, doing what the right reverend Prelate the Bishop of St Albans said and showing that the UK can be a leader in this field? That is the very least we deserve to hear.

Lord Henley: My Lords, I thank the noble Baroness, Lady Sherlock, for her request that I answer quite as many questions as she put to me. She will be faintly disappointed that, because of time constraints, I will be unable to answer absolutely everything that has come forward in the course of this debate, but I will certainly give an assurance that I will write to all noble Lords giving answers to questions that I cannot touch on in the necessarily brief speech that I have time to make.
I also offer my thanks to the noble Baroness, Lady Scott, for giving us the opportunity for at least airing—I think that is the best word—this subject initially on this occasion and acknowledging the deep concern felt all around the House. I hope that I can deal with some of the misconceptions and fears that have been expressed. I also want to give an assurance to the noble Baroness, Lady Scott, my noble friend Lord Borwick, and others that, first, there will be considerable consultation as and when appropriate, as there always has been by the department that I have had the privilege of rejoining after so many years.
I also give an assurance again, particularly to the noble Baroness, Lady Sherlock, that there will be considerable scrutiny by Parliament of these matters. She might find that she gets rather sick of the scrutiny by the end, because we all know that there will be scrutiny this Session, and possibly once we get the great reform Bill next Session, and the Session beyond. She will acknowledge that our strong parliamentary system provides more than enough opportunities for parliamentary scrutiny both in this Chamber and in the other Chamber—where the Bill has already started and will be coming here after our break—and through the inquiries being conducted by a great number of Select Committees in another place. I am thinking particularly of the recent inquiry from the Women and Equalities Select Committee on ensuring strong equalities legislation. That will provide the appropriate scrutiny for these matters that the noble Baroness rightly seeks.
I start by stating clearly that this Government have a firm commitment, made clear in our manifesto and later on, to maintaining the United Kingdom’s strong and long-standing record of protecting the rights and traditional liberties, and to supporting disabled people to fulfil their potential. The decision to leave the  European Union does not change this, and officials in the Department for Work and Pensions, in which I have the honour of serving, and in other departments will be working closely with all colleagues, and particularly with the Department for Exiting the EU, to ensure that the impact on disabled people is considered fully.
I can assure the House of the protections covered in the Equality Act 2010, which we should remember—I shall not say merely, because it added more things—consolidated all previous legislation. We have legislation going back a long way to the ground-breaking Disability Discrimination Act 1995. I was grateful to the noble Baroness, Lady Masham, for mentioning the Chronically Sick and Disabled Persons Act 1970, on which she made her maiden speech. That Act predates our accession to the EU by some years, which shows how long we have been involved in this field, in which we have a long and proud history.
The right reverend Prelate used those very words when he said that we had a proud history. He wants us to be a world leader. I can give an assurance that we are a world leader. We were a world leader with legislation such as the Disability Discrimination Act 1995, and we will continue to be a world leader. I hope that the right reverend Prelate will see that stepping forward yet slightly further with the Improving Lives Green Paper. That is something we are committed to do, and my right honourable friend the Prime Minister and others have made clear their commitment in this field.
As my right honourable friend the Prime Minister stated in her speech on 17 January, the Government will continue to work to ensure that the UK is a fairer society. I am sure that the whole House agrees that that should include disabled people to ensure that they have the right support and full access to opportunities provided by my department and other departments. We were reminded by the noble Lord, Lord McKenzie, that we made a manifesto commitment to halve the disability employment gap. That commitment is evidence of the importance the Government place on their duty to support disabled people to fulfil their potential. We intend to meet that commitment as far as possible.
Having a disability should not determine the path someone is able to take in life—in or out of the workplace. What should count is a person’s talent and desire to succeed. It is good to be able to report that, in terms of that commitment, we have already seen 600,000 more disabled people in employment than in 2013, and that is progress and an example of where we are going. The problem is that employment in other areas has also gone up and, therefore, the gap has not narrowed as much as it should, but we are going in the right direction and the fact that we have more disabled people in employment is a good thing. We want to see the gap narrow as well—but narrow while both are going up, rather than narrow while they go down. I am sure that the noble Lord, Lord McKenzie, would accept that this is the aim that we should pursue.
Since the new Disability Confident scheme launched on 2 November 2016, we have seen more than 3,500 employers sign up to it, including some big employers such as Jaguar Land Rover, Barclays, Channel 4 and Fujitsu. They all recognise the important point that the talent and skills that disabled people can bring to  their organisations should be recognised. This improving picture is very encouraging, although there remains much more to be done. That is why the Improving Lives Green Paper, which I touched on, seeks to start a far-reaching national debate by: working even more widely to change employers’ attitudes; trying to get systems across the department and the health service—obviously we have to work across government—working together better; encouraging everyone to focus on disabled people’s strengths and abilities; and introducing an accessible information requirement for local buses.
As I said, we have a proud history of leading the way internationally. If one looks at, say, the EU standards for making rail vehicles accessible, they are modelled on our own UK standards. To give one small parochial example, our very own city of Chester won this year’s European Union Access City Award. Through our international development aid work, the UK actively helps other countries to support disabled people. We recently joined the International Disability Alliance to create the Global Action on Disability group to stimulate more action on disability globally. I can assure the House that this Government will continue working towards the best possible outcome for all the people of the United Kingdom, which obviously includes people with disabilities.
There has been considerable concern about the impact of immigration changes to the recruitment of carers and workers from the EU—as raised by the noble Lord, Lord McKenzie, the noble Baroness, Lady Scott, and the noble Baroness, Lady Campbell; others have also touched on it—and I understand the concerns. The precise way in which the Government will determine how to control the movement of EU nationals to the UK after Brexit has obviously yet to be determined. We are considering very carefully the options open to us, following Brexit, to gain more control. As part of that, it is important that we understand the impact of any changes that we make on the different sectors of the economy and the labour market, including on health and social provision. But I assure the House that this is a matter that will be foremost in our minds in negotiations and thereafter.
The noble Lord, Lord McKenzie, also touched on the Council of Europe and the European Court of Human Rights. I can assure him that there is no intention whatever to withdraw from the Council of Europe, and we will still be subject to the European Court of Human Rights which, as the noble Lord knows, has nothing to do with the EU. That court long predates our membership of the EU but is possibly one of those popular misconceptions that should have been laid to rest many years ago—I see that the noble Lord and one or two others nodded at that. I can also give an assurance that we will continue our commitment to the UNCRPD; there is no question of any change in procedure on that.
I appreciate that there are a great many other questions on which I will need to write to noble Lords. The nature of these debates, as I said at the beginning, allows us to air the subject only briefly, so I shall therefore be writing a number of letters. I again express my gratitude to the noble Baroness, Lady Scott, for bringing this Question to the House today and thank all other noble Lords for their excellent contributions.
Ensuring that disabled people have the support that they need and the opportunities to fulfil their potential continues to be an incredibly important issue. It is one that the Government have repeatedly demonstrated their commitment to, as did previous Governments—it is a commitment that this and previous Governments can all be proud of. I can confirm that officials in my department are already engaged in those discussions that I mentioned with officials in other departments to ensure that disability issues are given due consideration. Exiting the European Union, whatever our future relationship with the EU, will not diminish that commitment to making the United Kingdom an accessible, equal and fair society.

Digital Economy Bill
 - Committee (2nd Day) (Continued)

Relevant documents: 11th and 13th Reports from the Delegated Powers Committee
Amendments 54D not moved.

  
Clause 17: The age-verification regulator: designation and funding
  

Amendments 55 and 55A not moved.
Clause 17 agreed.

  
Clause 18: Parliamentary procedure for designation of age-verification regulator
  

Amendment 55B not moved.
Clause 18 agreed.
Clause 19 agreed.

  
Clause 20: Enforcement of sections 15 and 19

Amendment 56

Moved by Lord Morrow
56: Clause 20, page 21, line 21, at beginning insert “If the person in contravention of section 15(1) is resident in the United Kingdom,”

Lord Morrow: My Lords, I wish to speak to Amendments 56, 58 and 65, which stand in my name and that of the noble Baroness, Lady Howe of Idlicote. At Second Reading, I made clear my concerns about how Part 3 would be enforced. Given the wide-ranging scope of the Bill, I did not expect to get detailed answers to my questions when the Minister wrapped up the Second Reading debate on 13 December. However, I am disappointed not to have received any subsequent reassurances from the Minister about my concerns and I therefore raise the same points again today, in the hope of receiving some concrete answers.
Part 3 of the Bill relies on three enforcement mechanisms, one of which is IP blocking, in Clause 23, which I support but will leave others to discuss. I am concerned about the other mechanisms, which many hope will be used before IP blocking is even considered. My Amendment 56 is to Clause 20, which allows the age verification regulator to impose a fine of either a  maximum of £250,000 or 5% of the qualifying turnover. How will this power operate if the website which is not in compliance with the age verification requirements of Clause 15 is based outside the UK? I am not the only noble Lord to have this concern. At Second Reading, the noble Baroness, Lady Benjamin, said that she was concerned about how the Government would be able to ensure that overseas sites would pay these fines. The noble Earl, Lord Erroll, with all his experience chairing the Digital Policy Alliance, also said that:
“One of the things that became apparent early on was that we will not be able to do anything about foreign sites”.—[Official Report, 13/12/16; col. 1214.]
As it seems unlikely that the Government will be able to collect fines from individuals outside the United Kingdom, my probing amendment, Amendment 56, would make that position explicit by ensuring that fines can be imposed only on someone resident in the UK. I would very much like to be proved wrong, but there is no evidence yet as to how this policy will be successfully enforced.
In another place the right honourable Matt Hancock acknowledged that fines would not always work abroad, but said that there were international mechanisms for enforcing them in some countries. I hope your Lordships will bear with me if I repeat a quotation that I also cited on Second Reading. Mr Hancock said:
“We want to be able to fine non-UK residents—difficult as that is—and there are international mechanisms for doing so. They do not necessarily reach every country in the world, but they reach a large number of countries”.—[Official Report, Commons, Digital Economy Bill Committee, 20/10/16; col. 217.]
I repeat the question I posed on Second Reading, and I hope the Minister will set out a detailed explanation of what these international arrangements are, and how they will work. I hope that he will quote chapter and verse on which jurisdictions in the world can be reached by these arrangements, and how easy it would be to use those mechanisms in relation to a site in a foreign jurisdiction to which the said international arrangements apply.
I should stress that this is a probing amendment. I am not saying that if this provision does not work in all jurisdictions it should be removed. If it works in some foreign jurisdictions it is worth keeping, although clearly in that context, the extent of its benefit will be limited by its international reach. I simply want to press the Minister to explain how it will work and in what foreign jurisdictions it will apply.
Given my concerns about the limited utility of the fines mechanism, Amendments 58 and 65 are intended to strengthen the second enforcement mechanisms in the Bill. Financial transaction blocking is set out in Clause 22, the premise of which is one of disrupting the business model of websites. The Minister in another place said:
“Our view is that enforcement through disrupting business models is more powerful because you are undermining the business model of the provider.” —[Official Report, Commons, Digital Economy Bill Committee, 20/10/16; col. 199.]
In practical terms, if a website is not in compliance the age-verification regulator can inform financial transaction providers and ancillary service providers, such as those   who support websites with services like advertising, that a website seeking access to the UK market is acting in violation of UK law, and the intention is that these businesses will withdraw their services. Admirable though that sounds, I am not convinced that Clause 22 as it stands will disrupt the business model of websites, because, as I said on Second Reading, Clause 22 does not require the regulator to relay information on non-compliance to financial transaction providers. My Amendment 58 would require this information to be provided to financial transaction providers and ancillary service providers, by amending subsection (1).
Clause 22 does not empower the regulator to require providers not to process transactions with such sites either, nor does it make any demands of the providers to take any action against a non-compliant website. My amendment would place an enforceable duty on payment providers and ancillary service providers to take action against a non-compliant website, similar to the duty in Clause 23, once they had been notified of a non-compliance.
In the Government’s response to the consultation on age verification, they said that they do not think it would be appropriate or necessary to place a specific legal requirement on these payment providers to remove services, basing this on their stated belief that they can rely on such companies to block transactions because their terms and conditions require merchants to be operating legally in the country they serve. Similar statements were made by the Minister in Committee in another place.
On Second Reading I noted that exactly the same arguments were used during the passage of the Gambling (Licensing and Advertising) Act in 2014. At the start of 2017, the evidence on the effectiveness of the reliance on payment providers is far from reassuring. According to a parliamentary answer on the detail that the Minister gave on 12 January, transactions have been blocked for only 11 gambling websites. That seems a very low number to me. One of the difficulties is that depending on terms and conditions does not lend itself to transparency. We require a much more transparent arrangement for what will become the Digital Economy Act.
I also note that no statements have been made about whether ancillary service providers are under the same obligations as the Government argue rest on financial transaction providers. I hope the Minister will tell the House the basis on which the Government believe ancillary services providers will act as part of their enforcement arsenal. I remain concerned that Clause 22 does not give pornography providers strong enough commercial incentives to comply, because they will not be absolutely certain that payments will be blocked in the event of non-compliance. My amendment would remove that uncertainty.
The need for clarity on enforcement was forcefully presented by research from the University of Oxford that I cited on Second Reading. The report Effective Age Verification Techniques: lessons to be learnt from the online gambling industry looked at how age verification on gambling websites had worked. The authors concluded that where there are strict audit and enforcement requirements, there is an incentive to invest in high  assurance identity and age verification processes, but where enforcement is patchy and uncertain, the incentives to invest in expensive authentication systems are less clear.
I am convinced that without robust enforcement, all our good intentions in relation to the protection of children will come to nothing. Many noble Lords supported the principle of Part 3 on Second Reading—but principle is not enough. We need rigorous action, and at the moment it is unclear just how the Bill will be enforced to ensure that our good intentions are met. I hope that on this occasion the Minister will respond to the questions I have raised in detail. I beg to move.

Baroness Benjamin: My Lords, I wish to speak on my two amendments in this group. Amendment 63 relates to the guidance that the age verification regulator may issue under Clause 22(7). It would make publishing this guidance mandatory rather than discretionary. It has been noted by the Delegated Powers and Regulatory Reform Committee that the regulator has extensive powers to issue guidance under Part 3—that is, in Clauses 15(3), 21(9) and 22(7). The guidance required in Clauses 15(3) and 21(9) is mandatory, but in Clause 22(7) it is discretionary.
The effectiveness of Clause 22 is central to the Government’s enforcement strategy. It is great that they want to disrupt pornography websites that are not in compliance with the age-verification requirements of Clause 15(1) by either stopping the money via the payment providers or disrupting other business activities via what the Government deem ancillary service providers—ASPs—a term that is broadly defined in Clause 22(6).
The Bill states that the age verification regulator,
“may publish guidance for the purposes of subsections (1) and (6) about the circumstances in which it will treat services provided in the course of a business as enabling or facilitating the making available of pornographic material or prohibited material”.
It is essential that the guidance in clause 22(7) be published. It is not just something that would be nice to have, which is how the Bill currently stands.
In making the case for mandatory guidance, I would like to make two additional points. First, Parliament should know whom the Government intend should be considered an ASP, so that the debate we are having today can inform the guidance. In their original consultation document on age verification, the Government defined ASPs as,
“services which support and profit from the delivery of pornography on commercial sites. These include, but are not limited to, payment systems, advertising on pornography sites, web-hosting services, and other revenue-generating processes associated with these sites”.
Payment providers are defined in subsection (5) but whether the Government still intend that other types of organisation listed in the consultation document should fall within the scope of Clause 22 is not clear. The truth is that we do not know whether there will be any clear, comprehensive guidance, and that is simply not good enough from the Government. There is a strong argument that the definition of an ASP should be fully provided on the face of the Bill. My hope is that, at the very least, we should have an absolute guarantee that the regulator will provide guidance defining who will be considered an ASP.
Secondly, I would like to raise questions about how social media and media sites will be treated for the purpose of Clause 22. We need clarity on this. If my amendment was accepted, that clarity could be provided through mandatory guidance. I was pleased to hear the Minister reconfirm that all social networking sites will be classed as ancillary service providers, and that this arrangement would apply to the likes of Facebook, Tumblr, Instagram and so on when showing commercial pornographic material.
However, I want to mention briefly user-generated material on social media, an issue that naturally arises in debating this Bill if we are told that it will not cover it, despite a vast amount of hardcore porn that can easily be viewed by anyone, including young children, being just a couple of clicks away. The majority of social media sites say that 13 year-olds are allowed to use their sites. In fact, 75% of all 10 to 12 year-olds in the UK are on one or more social media sites. So there is no justification for a site that says 13 is its minimum age providing easy access to harmful 18-plus material; even less so when the same site also knows that in fact, large numbers of under-13s are its customers.
As it stands, commercial porn sites will be required to introduce age verification to limit access to over-18s, but social media sites escape such a requirement if the material is user-generated. Therefore, we leave the door wide open and we may end up driving kids away from big porn sites straight into the virtual clutches of porn merchants who operate via social media. One suggestion is that perhaps the proposed new regulator could identify individual accounts or profiles persistently publishing pornography on a significant scale on any site or service. The regulator should then have the power to require the owner of the site or service to delete the account or profile, or put it behind an age verification gateway. Importantly, the whole site or service would never be blocked or restricted.
I welcome Amendment 69A in the name of the noble Lord, Lord Paddick, which would seem to be an additional sensible means of beginning to address some of these concerns regarding non-commercial pornography. Requiring the Secretary of State to lay regulations concerning non-commercial porn is helpful. I particularly support the proposal for a warning sign on a website that the user may be about to access pornographic material. A warning of this kind may not be a silver-bullet deterrent but is a welcome step in the right direction and a platform upon which we can build for the future.
If the Government are not going to address user-generated content through this Bill, then I wonder what their child protection policy is with respect to engaging user-generated content. If the Government have reached the conclusion that commercially generated content is something from which children should be protected, then it seems illogical not to be concerned about user-generated content. It is worth remembering that the Government’s manifesto commitment was to,
“stop children’s exposure to harmful sexualised content online”.
There is no mention of how the content was produced. The Government’s response may be that addressing user-generated content is more difficult, but we need to address this issue. I hope that the Minister will meet me and other concerned Peers to discuss this challenge.
I turn briefly to my other amendment, which is short and to the point. Amendment 237 would add a new paragraph to ensure that Part 3 and Clause 80 come into force one year after Royal Assent. The Bill as it stands does not say when, or even if, Part 3 and Clause 80 will ever come into force. This is an oversight which would do our children and young people a great disservice. I am sure that is not the Government’s intention. When the Bill was debated in Committee in the other place, the Minister said he expected that Part 3 would be in effect 12 months after Royal Assent. This is a welcome expectation. However, to give certainty to all the organisations affected by Part 3 and video-on-demand providers who will need to adjust their age verification systems, there should be confirmation of that 12-month timetable by putting that commitment on the face of the Bill. It seems to me that this lack of clarity stands at odds with the explicit commitment to commence other sections of the Bill to a specific timetable. Clause 89 sets out that six sections will come into force the day the Act passes, 17 sections and one schedule two months after Royal Assent, and one section on 1 June 2020. Every other section will depend on the Secretary of State bringing the relevant sections into force by regulations.
This situation with Part 3 is completely unsatisfactory. I urge the Minister to commit to the timetable set out in the other place by tabling an amendment on Report to ensure the child protection measures we have debated will come into effect a year after Royal Assent, and to place on notice all those providing commercial pornographic websites that they will need to prepare to comply with the age verification requirements in Part 3. I look forward to hearing what the Minister has to say in response to my questions and very much hope that the Government will accept my amendments.

Lord Paddick: My Lords, I have Amendment 69A in this group. Before I discuss that I wish to address a few remarks to the other amendments in the group. I understand the concerns of the noble Lord, Lord Morrow, about enforcing fines on people who are not within the United Kingdom. However, I do not understand how his Amendment 58 would be any more effective if the payment service provider or the ancillary service provider is also outside the UK. Perhaps when he addresses the Committee shortly, he will also indicate to me, because I am a little confused, the difference between his provision in paragraph (a) of proposed new subsection (2) in his Amendment 65, where enforcement of the age verification regulator’s decision on the payment service provider or ancillary service provider is implemented by way of an injunction, and the proposals suggested for a similar process under Amendment 66.
On Amendment 69A, as I mentioned on an earlier group, there are increasing amounts of adult material available on the internet that is not commercial in any sense. Much of it is taken from commercial websites but there is no reference to which website the material has come from, and therefore no suggestion that it is intended as a lure or as providing a link to a commercial site.
To take up issues just raised by my noble friend Lady Benjamin, increasingly there is pornographic material that might be described as “home videos”, either produced by what might be described as exhibitionists and others where innocent members of the public, including some celebrities in recent years, are deceived into performing sexual acts to their computer camera not knowing that they are being recorded for subsequent posting on to publicly available websites. There is also the issue that Liberal Democrats have been very strong in trying to tackle: those instances of “revenge porn” where disgruntled exes post compromising videos online. From what I can see, that type of material is not covered by the Bill, as there is no commercial aspect and no ancillary services involved. There is confusion about what “ancillary service providers” means. In his remarks on an earlier group of amendments, the Minister talked about pornographers to whom ancillary service providers provide their services. In the case of self-generated or home-grown obscene material, though, there is no pornographer that the website is providing a service to, at least in one sense. Perhaps the Minister will clarify that.
The noble Baroness, Lady Kidron, spoke about the fact that there are some social platforms, such as Facebook and Instagram, which are very good at taking down inappropriate material: they have strict rules about obscene material posted on their platforms. However, there are particular difficulties here with platforms such as Twitter and Tumblr. Although 99% of the content is innocent and of no harm to children, or anyone else, there are Twitter feeds and Tumblr pages that have adult material on them. Those are not simply links to porn sites, but actual videos on the actual pages or Twitter feeds. While most have a warning on the front page—NSFW, or not suitable for work, and 18+ only—that is usually also the page that has already got pornographic images on it. Even on Twitter, it may not be clear that the media content is pornographic until one has accessed those images. Clearly, there is difficulty in enforcing age verification on those platforms when the overwhelming majority of the material contained on them is not adult material.
What I believe needs to be explored is making a tool available to those who want to use social media for adult material, so that when the Tumblr page or Twitter feed is accessed, the user is diverted to a page that warns what lies behind and provides an option to divert away from the adult material. That alternative page could be a government-specified warning about the impact that pornography can have on young people, advising where support can be given and so on: the equivalent to the warning messages that are now printed on cigarette packets, for example. Alternatively, the Government could by regulation insist that such a tool was made available, to ensure such a warning page is placed on accounts, as the noble Baroness, Lady Benjamin, mentioned just now, so that people are alerted that such pages or Twitter feeds have adult content on them. It falls short of requiring age verification or blocking such accounts, which I am sure Twitter and Tumblr would resist, but it would still address an important issue.
In its useful briefings on this aspect of the Bill, the NSPCC says there is a particular problem with children  who accidentally stumble across adult material. This would go some way to addressing that issue. The NSPCC says a particular problem is pop-up advertisements from commercial pornography sites, which regrettably this amendment does not address—nor is that addressed by any other part of the Bill. Will the Minister tell the Committee whether there is any move by the Government to address that issue?
It is one thing for the BBFC to block a porn site that does not have age verification; it is quite another to suggest—as the Minister said on an earlier group of amendments—that we block a platform such as Twitter, if it fails to do the same for a handful of feeds that contain adult material. I accept that the amendment as drafted is probably far too wide in the powers it gives to the Secretary of State, but it is important that we do not ignore non-commercial adult material, which in increasingly a problem on the internet.

Baroness Howe of Idlicote: My Lords, my amendment to Clause 17, which noble Lords have already discussed, raised the importance of knowing how the Government plan to enforce the Bill through the appointment of one or more age verification regulators. The amendments tabled by the noble Lord, Lord Morrow, and the noble Baroness, Lady Benjamin, raise similar questions about the mechanics and processes of enforcement and I am very glad to be able to speak in support of Amendments 63, 56, 58 and 65.
On Amendment 63, I agree completely with everything that the noble Baroness, Lady Benjamin, has said. If we are not to have real clarity about the identity of ancillary service providers on the face of the Bill, the idea that we can make do with optional guidance is unsustainable. It must be made mandatory. On Amendment 56, I support the call from the noble Lord, Lord Morrow, to hear a full explanation from the Minister of the mechanisms for enforcing the fining provisions in Clause 22 in other jurisdictions, which were alluded to by the Minister in another place.
In the time available today, however, I would like to focus particularly on Amendments 58 and 65. Any noble Lords who were in your Lordships’ House when we debated the Gambling (Licensing and Advertising) Act 2014 will know that I had a major reservation about the Government’s plans to rely on payment providers to enforce the licensing provisions applying to foreign websites. I think that the noble Lord, Lord Morrow, has demonstrated that my reservations were well founded. In response to written Parliamentary Questions I tabled last year, the Government said that, since the law came into effect in 2014, the Gambling Commission has written to approximately 60 gambling websites reminding them of the law, and payment providers have been asked to block payments 11 times. Given the size of the global online gambling market that can access the UK, that surely seems tiny. If we are supposed to be reassured, I suggest that the Government should think again.
The noble Lord, Lord Morrow, also raised questions about why the Government think that ancillary service providers will act to withdraw their services. I recognise that the Government want to disrupt the business models of pornographic websites, but for some companies,  to withdraw their services would be disrupting their own business models. They may be small businesses, not major international organisations such as Visa and MasterCard. In such cases, it would not be in the interests of the business to act. They cannot be expected to do so unless it is made an explicit legal requirement with a clear sanction. My concerns about the absence of any sanction or requirement to act are readily acknowledged by the Government’s own publications, in a manner that I find rather unnerving. In the press release the Government issued when they announced their plans for IP blocking, they said they were,
“also seeking co-operation from other supporting services like servers to crack down on wrongdoers”,
and in the notes to the release said:
“Websites need servers to host them, advertisers to support them, and infrastructure to connect them. With the international and unregulated manner in which the Internet operates we cannot compel supporting services to be denied but the regulator will seek to gain cooperation from the industry”.
They seem to be hoping that, although they have inserted this age verification requirement into statute, it is acceptable to back it up with what is effectively a non-statutory, half-hearted good will enforcement mechanism. Lest anyone doubts this, they should review the Government’s evidence to the Delegated Powers and Regulatory Reform Committee about the delegated powers in the Bill. The Government reported on the guidance to be issued under Clause 22(7) about who will be given a notice about non-compliance of pornographic websites. Importantly, the Government said:
“The recipients of those notices can decide whether or not to take action. Accordingly it is considered that no Parliamentary procedure is necessary”.
It seems that the Government hope that by placing the obligation for age verification in statute, we will congratulate them on fulfilling their election manifesto commitment, without—at least as far as Clause 22 is concerned—any credible commitment to enforcement.
We would not be doing our job as a revising Chamber if we allowed such an obviously flawed clause through. It is imperative that the Government accept Amendments 58 and 65 in the name of my noble friend Lord Morrow. The age verification regulator must be required to tell financial transaction providers, and indeed ancillary service providers, not to do business with sites without age verification checks, and to follow up to make sure that no financial, or other, transactions have taken place. Meanwhile, the financial transaction providers and ancillary service providers must know that this will take place and that if they fail to act accordingly, the regulator will place sanctions against them. I hope the Committee will support Amendments 58 and 65.

Lord Maxton: My Lords, I am very reluctant to take part in this debate, because I was not available to speak at Second Reading, which always restrains noble Lords from speaking in Committee. However, I will make three points.
First, I confess openly that I have indulged in sexual activity—I will not say when, as that might be unfair. But I have never fired a gun or a revolver in  anger, or taken part in a fight with a knife, or indeed taken part in a fight at all. Yet we are not banning scenes of violence, even on the news, which are seen by children all the time, whereas we are involved in banning scenes of sexual activity. That may be right, but we ought to be looking at other areas of life as well, because they can damage children just as much as sexual activity can.
Secondly, this law as it stands—many noble Lords who have moved or spoken to amendments have admitted this—is almost inoperable. It cannot be enforced—or can be enforced only on rare occasions. That is rather like speeding in your motor car, which is an analogy I have used before. Everybody breaks the law by speeding—or most people do—because they know that they will not get caught. That is rather like this law, as it stands at present. The problem with unenforceable or rarely enforced laws is that they bring the law into disrepute—and that is the danger of this part of the Bill as it stands. We are in danger of bringing in something that is not enforceable and, by doing so, we are bringing the law itself into disrepute.
Lastly, I will give my solution to all of that. The aim of this part of the Bill is not to stop pornography sites but to stop children watching them. There is a simple answer to that—but, unfortunately, it is an answer that the Liberal party do not support and which the Tory Government got rid of when we introduced the voluntary part of it. It is an identity card. If you introduce a mechanism whereby you can get into pornography sites on any device only by using your fingerprint or via eye recognition, or whatever it might be, of course that can stop it. On my iPad I already have a device by which I can save my passwords and which will show them to me when I want to use them. But I can get into it only by using my fingerprint; I cannot do it any other way. I cannot even use my normal four-digit pass code; I can do it only with my fingerprint. Why not do that sort of thing for pornography sites as well? Only adults will be able to get into them; children will be barred by the introduction of an ID card mechanism, so that you can get into it only by that means. Unfortunately I have hospital appointments during the next sitting of Committee, but I hope that on Report I will be able to introduce amendments to that effect.

Earl of Erroll: My Lords, I have one amendment in this group. I very much support Amendment 65, but there is no point adding anything to what the noble Lord, Lord Morrow, said. He covered it in great detail and for all the right reasons. I will add only for the noble Lord, Lord Paddick, that a lot of the payment service providers—this is the key to it—such as Mastercard, Visa, and so on, are international. If there is a duty on them, they are very good at trying to stick to the law. That would close quite a few holes and make life a bit difficult for sites—so as a deterrent, it would really help.
Sadly, this whole approach to cutting off the ancillary service providers years ago was enough to kill off pirate radio in the 1960s—which I was very sad about. But this time I approve of being able to do it, because I approve of the motives behind it: trying to stop children accessing pornography.
Amendment 68B, in my name, questions what a “large number” of children is. I realise that it is obvious that you have to prioritise, because 80% of the sites are over a certain size and they will definitely come under this. They handle 80% or so of the traffic, or whatever, so I can see that you should check up on them first. But they are also the ones that will comply, because many of them are onside anyway. However, let us say that there are 10% of sites left. That is an awful lot of children, if you do the maths in your head. You knock one nought off the end of however many children there are, but you still leave an awful lot. I therefore do not understand why we are leaving in a “large number” as a constant target. There must come a point when it is worth moving on to the smaller numbers as well. I therefore do not understand the purpose of the clause. It is self-evident that they will have to prioritise. If they do not, they are idiots—and I know perfectly well that the members of the BBFC are not. Therefore I cannot understand the purpose of it.
Amendment 69A, in the name of the noble Lord, Lord Paddick, has some merit in it. As the noble Baroness, Lady Benjamin, said, there is a lot of non-commercial stuff out there. The purpose of this is to stop children viewing pornography. It does not matter whether it is commercial or not. If you put in something like this, there are clever ways in which people will try to define their sites as non-commercial. In particular, if they can start appealing against this—this is where having a complicated appeals process would become so dangerous—I can see loopholes opening up. So we need to start including non-commercial pornography—and it is okay if it takes a year.
I also support Amendment 237, in the name of the noble Baroness, Lady Benjamin. We need to have a deadline. It is something that all sites can work towards. We should say that, on whatever date, if sites are not compliant—we suggest that it ought to be a bit like a speed limit, where you ought to slow down before you hit the 30 miles per hour limit—we will issue notices to the ISPs to block them. Something might happen, because you have a level playing field, everything happens on the same date, and under the amendment in the name of the noble Baroness, Lady Benjamin, they will have a year to do it in. That is probably enough to get your regulations in place and so on. It is a very good idea.

Lord Browne of Belmont: My Lords, I am pleased to be able to support Part 3 of the Bill, and Amendments 58 and 65, in their objective of increasing child safety. However, I am concerned that the Government’s proposal in Clause 22 currently leaves many questions unanswered. I am raising these points in the context of the Government stating in the impact assessment for the Bill, published last May, that the regulatory system to be set up under Clause 22 would merely,
“nudge porn providers to comply and put age verification in place”.
That is not consistent with the much bolder manifesto commitment simply to,
“stop children’s exposure to harmful sexualised content online by requiring age verification for access to all sites containing pornographic material”.
Since then the Government have set out a robust position on IP blocking, which leaves websites little room for doubt as to what might happen if they do not comply with Part 3. The enforcement action is clear: the age verification regulator can issue a notice and internet service providers have a duty to respond. In this regard, and alluding back to the previous debate, I think it is vital that Clause 23 should remain as it is—unamended.
However, there has been no upgrading of Clause 22 in parallel with the introduction of Clause 23, so we are left with the notion of “nudging” websites—which gives me little reassurance that this is a robust approach to enforcement. Under Clause 22(1) the age verification regulator may give a notice to a payment provider or an ancillary service provider, but it is not clear when or if the regulator would inform the service provider that such a contravention was happening. Would it be after a fine was not paid or after a letter had been sent—and, if so, how long would a website have to respond before a notice would be given? I hope that the Minister will set out the Government’s intentions.
I support Amendment 58, tabled in the names of the noble Lord, Lord Morrow, and the noble Baroness, Lady Howe. It would require the regulator to issue a notice under Clause 22(1). The noble Baroness deserves much credit for her persistence in bringing this issue before your Lordships’ House over many years. My bigger concern is that, having set out clearly that internet service providers must act in response to a notice from the regulator, there is no transparent statutory expectation on payment providers or ancillary service providers. How do the Government expect enforcement to take place without this power? Others have set out their case on this point in detail and I will not take up the time of the Committee by repeating it, but I am left feeling concerned that there is no power to require service providers to take any action after receiving a notice from the regulator. Furthermore, such a lack of teeth undermines the Government’s manifesto commitment to prevent children accessing all pornographic websites.
I fully support Amendment 65 in the group, which would make it a duty for payment providers and ancillary service providers to act by removing their services from contravening websites, and makes that duty enforceable. I hope that the Government will agree.

Baroness Jones of Whitchurch: My Lords, I rise to support in particular the inclusion of Amendment 65 on the requirement for payment services providers to cease providing a service to those who flout the age verification rules, and I am pleased to say that it looks like we are building slightly more of a consensus on that than we did on the previous group of amendments. It seems to us that this is the most powerful measure that can be taken against rogue pornographic sites. If we can cut off their source of income, the likelihood of a positive response is almost inevitable.
The very nature of commercial pornography is based on the vast sums of money that can be made from it. Indeed, when we debated Part 3 at Second Reading, several noble Lords made the point that legitimate pornography sites would welcome the age verification process as they do not make any money  from children casually visiting their sites; they want the more serious players to be involved because obviously they are the ones who are going to pay the money, so there is a kind of internal logic to what is being proposed. For these sites, the overriding concern is to harvest the profits, and any threat to that is likely to bring about an immediate response.
However, I also accept the point that we have to get the enforcement right, and I listened carefully to the noble Baroness, Lady Howe, about the experience with regard to the Gambling Bill, some of which I did not know. If there is a problem, let us talk it through and work it out because somewhere in the mix is the answer to our problems.
My noble friend Lord Maxton said that this could not be enforced. I do not think that anyone considers that what is being proposed in the Bill is going to be 100% deliverable or enforceable. We are on a journey and, if we can attack 50% or 75%, we are making progress in this area. It is inevitable that we will have to revisit the whole issue in the future, so we are taking steps towards what I hope will be a fully robust system. Incidentally, I agree with my noble friend about identity cards, although obviously that is another issue. I have tabled amendments on how it is possible to provide age verification on an anonymised basis and I hope that he will look at them. There are new websites that manage the process of checking identity without putting people’s details into the public domain. Technology is moving on in ways I do not claim to understand, but I am glad they are there.
Amendment 65 also refers to the requirement for ancillary service providers to block access to non-complying persons. We have debated this a little this afternoon. While we have some sympathy with that objective, we are keen to ensure that any measure to block sites via ancillary service providers, such as Twitter and Google, are proportionate and deliverable. The Minister and the noble Lord, Lord Paddick, reaffirmed that. We are not talking about taking down the whole of Twitter, so I do think we need to get the proportionality of this right. We will explore this issue more in some of the amendments that we have tabled for debate later on, and we need somehow to have further discussion and debate about social media sites, their responsibilities and what we can do about it.
I was very interested to hear the contributions of the noble Baroness, Lady Benjamin, and of the noble Lord, Lord Paddick, on the issue of what was not commercial but user-generated material, including issues such as revenge porn, which the noble Lord reminded us about. That is an issue that we really need to address and I feel that children are particularly susceptible to getting involved in that innocent exchange of information, which can prove all too damaging and be misused against them by those who are keen to exploit their innocence. We need to build in more protections for children from being exploited in this way. I do not know whether the Minister has any more thoughts on that, but I hope we can explore in more detail the question of what is different between commercial and non-commercial material and how can we make sure that those children are protected?
Finally, I have added my name to Amendment 237, tabled by the noble Baroness, Lady Benjamin, and we agree with the one-year implementation date. As we have already outlined, we feel there is a great deal of more work to be done in this Bill, both in primary and secondary legislation, but we agree that a one-year deadline would produce, on the one hand, space for this additional work to be done and, at the same time, provide reassurance of our ultimate determination to introduce what we hope would be a robust and detailed age verification system which would stand the test of time.

Lord Ashton of Hyde: My Lords, I am grateful to all noble Lords for bringing up these rather difficult points which we have to address. This highlights that trying to fulfil our manifesto commitment is much easier in some parts, but there are also some areas on the edges that we accept are difficult. I do not think we are going to achieve a 100% success ratio and we are cognisant of that.
I shall start by addressing some of the general points that noble Lords made before I get on to the specific details of the amendments. I apologise to the noble Lord, Lord Morrow, for not answering his questions asked at Second Reading. I wrote a long letter on 21 December and I missed out some of his points, although at the end I made an offer to all noble Lords to bring up anything that they wanted.
As far as porn sites overseas is concerned, and how we should enforce this new law against such websites and companies that are not based in the UK, the aim of our policy is to capture all commercial sites regardless of where they are based. Overseas providers will still be incentivised to comply by the elements of the scheme which will disrupt their income streams. ISP blocking powers greatly increase the chance of effectiveness of the whole regime—I will come on to that more in a minute. The regulator will have the power to identify and notify infringing sites and to enable payments providers to withdraw services under their existing terms and conditions. These already require merchants to act legally, both in the country they are based in and in the countries they serve.
It is of course possible that there will be cases where it is difficult to enforce a financial penalty—for example, in the case of websites with no UK presence, as identified by the noble Lord. Even in those cases, however, circumstances may change and the option to enforce will remain. For example, the location of a pornographer may change or enforcement regimes may evolve. The regulator has discretion to take a proportionate approach. What I do not understand, however, is why not even allowing the regulator to include foreign sites is an improvement.
The noble Lord, Lord Morrow, also talked about payment providers and ancillary service providers. I can inform noble Lords that we have had constructive discussions with payment providers and they have indicated that they will act under our regime. The noble Earl, Lord Erroll, confirmed that. There are ranges of potential ancillary service providers. In some  cases, the existing the existing terms and conditions will allow them to act when notified by the regulator. We believe that companies will take responsibility when enabling or facilitating the availability of pornography.
The noble Baroness, Lady Benjamin, talked about ancillary service providers that carry pornography not being blocked. The Bill strikes a balance. It is our belief that the key issue is the commercial providers who monetise pornography attracting large numbers of underage visitors in the process. Like the noble Earl, Lord Erroll, we believe that dealing with the largest of these providers will be a great step towards a reduction in access by children.
The noble Lord, Lord Paddick, referred to content such as revenge porn. This was brought up again by the noble Baroness, Lady Jones. We are clear that abusive and threatening behaviour online is totally unacceptable. Legislation is in place to prosecute online abuse. In the case of revenge porn, Section 33 of the Criminal Justice and Courts Act 2015 created a new criminal offence of disclosing private sexual photographs or films without consent and with the intent to cause distress, so there is existing legislation. There is new legislation and old legislation that has been adapted to deal with that very problem.
I shall now come to the detail of the amendments. Clause 20 provides that the designated age verification regulator may impose a financial penalty where someone has breached the requirement to have age verification controls in place, has not complied with an information requirement or has not complied with an enforcement notice. Clause 20 allows the designated regulator to give an enforcement notice where someone has breached the requirement to have age verification controls in place.
Amendment 56 would reduce the regulator’s discretion by restricting its ability to apply financial penalties for a breach of the requirement to have age verification controls in place. It would remove the power to apply financial penalties to non-UK residents in breach of Clause 15(1). The Government’s view is that the regulator should have the flexibility to apply sanctions to persons who are non-compliant, regardless of where they are based. During the Government’s consultation on these measures, arguments were made over the potential difficulties of enforcement, especially on taking action against non-UK companies. We are clear, however, that a flexible approach that includes a number of options is needed. We accept that there may be difficulties in taking enforcement against companies based overseas. However, as I said, we should not restrict the options available to the regulator, which should be able to take a view on enforcement based on the particular facts of any given case.
The Government recognise that financial penalties may not be effective in every case. That is why we have included other options for the regulator. For example, the power enabling the age verification regulator to instruct ISPs to block content to sites that remain non-compliant greatly increases the effectiveness of the whole regime and of compliance by providers of pornography. Our regime is designed to ensure that financial penalties are not the only sanction; there is also the ability to disrupt non-compliant sites’ business  models. But we should ensure the regime allows for both fines and enforcement notices as appropriate to the individual, regardless of where they are based.
Clause 22 is an important provision containing powers at the heart of the regime to enable the age verification regulator to notify payment service providers and ancillary service providers of non-compliant persons. Amendment 58 would make it mandatory for the age verification regulator to serve notice to any payment services provider or ancillary service provider under Clause 22(1) where it considers that a person is contravening the age verification requirements in Clause 15(1) or making prohibited material available on the internet to persons in the UK. We need to be careful to ensure that we do not constrain the BBFC, which is expert in this area and committed to its role as an AV regulator in carrying out the role in the most effective way. It is important that the regulator has the flexibility to take the most appropriate action depending on the facts of any given case.
Amendment 63, in the name of the noble Baroness, Lady Benjamin, would require the regulator to publish guidance under Clause 22(7), rather than having the discretion to do so. I realise that the Delegated Powers and Regulatory Reform Committee and the Constitution Committee have made recommendations about increasing the level of parliamentary oversight for this guidance. We have listened to and noted those concerns; we are carefully considering our response to the committees as a matter of priority. Again, as I have said, we will be able to outline that before Report. On the question the noble Baroness asked about who would be classed as an ancillary service provider, I will correct something she said. I think what I said was that the Government, under the legislation, believe that internet sites can be classified by the regulator as ancillary service providers— it is ultimately the regulator’s decision—where they are enabling or facilitating the making available of pornographic or prohibited material. If that is the case, it could be notified.
Amendment 65 would require payment services providers and ancillary service providers to block payments or cease services provided to the non-complying person where the regulator has given notice to the payment services provider or ancillary service provider under Clause 22(1). This approach represents a considerable change. We are quite clear that it is not necessary. It is important that the BBFC has the freedom to build effective working partnerships with payment service providers and ancillary service providers. As part of a proportionate system, it is not necessary for the BBFC to begin regulating those services. We think that the focus should rightly be on the providers of pornography.
Amendment 68B, in the name of the noble Earl, Lord Erroll, relates to Clause 24 and would allow the regulator to exercise its powers in relation to providers wherever persons under the age of 18 were accessing pornographic content. Clause 24 allows the regulator to act in proportionate way, specifying that the regulator may choose to exercise its powers principally in relation to persons who, in the age verification regulator’s opinion, make pornographic material or prohibited  material available on the internet on a commercial basis to a large number of persons, or a large number of persons under the age of 18, in the UK. Importantly, Clause 24 gives the regulator discretion, which means it is not bound by the provisions in Clause 24(1). Therefore, the amendment is unnecessary.
Amendment 69A, in the name of the noble Lord, Lord Paddick, would require that websites containing pornographic material made available on the internet not on a commercial basis be given a warning stating that the material which follows is pornographic material. This is an interesting idea and I understand that some sites already have equivalent systems in place. The focus of the Government’s policy is on the commercial providers of online pornographic content. Such companies profit from providing content to UK users with little or no protections to ensure that those accessing it are of an appropriate age. The Bill is a big step and we should not seek it to be a solution to all problems related to children’s access to online pornography. We want companies to take more responsibility where pornography is available and agree that more can be done. The age verification measures in the Bill are a significant starting point and should be given time to succeed before seeking to go further.
Amendment 237, in the name of the noble Baroness, Lady Benjamin, would make Part 3 and Clause 80 come into force at the end of the period of one year beginning with the day on which this Act is passed. Following Royal Assent, the Government intend formally to designate the BBFC as regulator and expect to be in a position to commence the provisions within 12 months of that date. Clearly, we want the provisions to be in place as soon as practicable. However, it is important that the Government retain flexibility without being too prescriptive on timings at this stage.
The noble Lord, Lord Paddick, and the noble Baroness, Lady Benjamin, were right to ask how we prevent porn being available on social media. It will depend on the facts of any given case, but should a social media site focus solely on pornography we think it right that the regulator is able to consider whether the site is making pornographic material available on a commercial basis. However, where pornography is not a substantial part of the site, that will of course be less likely. As I have said before, we think the regulator should be able to consider where sites are enabling and facilitating the availability of pornography. In this case, they would not be subject to the regulatory powers but would be notified that pornographic material was available without age verification, but they would not be required by the Bill to act. We want to achieve a consensual regime. As I have said previously, we are in contact with many social media sites, many of which are keen to act because their reputation and their brand are dependent on being seen to do so.
There has been quite a lot of detail in my response, but I hope that it will be enough for the moment to allow noble Lords not to press their amendments.

Lord Morrow: My Lords, I respectfully thank everyone who has participated in this debate. I have to be honest with the Committee that I am disappointed by the response. However, I must be very truthful, too, in that I am watching the clock with one eye as I have a flight  to catch, and I may not catch it if I stand here any longer. So noble Lords may understand why I will be brief. I was looking forward to the Minister perhaps explaining in some detail how the fangs would apply abroad and how that would work. I would be grateful if, even now, he would take that on board. Perhaps he would write to me and outline in some detail how he sees that working.
Very briefly, on the point made by the noble Lord, Lord Paddick, this will bind services and financial transaction blockings only if they have a foot in the UK. My amendment would provide leverage in that instance. That was the point that maybe I did not make clear, but it was the point I was trying to make. Also, I was very struck by the point of the noble Lord, Lord Maxton, when he said that he thought the way forward would be identity cards. If that amendment is brought up at a later stage, he will discover that I am very close behind him going through the Lobby when he makes that suggestion. At least he can look to me for that—whether that is good news or bad news. He does not seem very impressed. I leave it there and thank everyone for speaking today. I beg leave to withdraw the amendment.
Amendment 56 withdrawn.
Clause 20 agreed.

  
Clause 21: Financial penalties
  

Amendment 56A not moved.
Clause 21 agreed.

  
Clause 22: Age-verification regulator’s power to give notice of contravention to payment service providers and ancillary service providers

Amendment 57

Moved by Baroness Jones of Whitchurch
57: Clause 22, page 23, line 44, leave out paragraph (b)

Baroness Jones of Whitchurch: My Lords, in moving Amendment 57, I shall speak also to Amendments 59, 60, 61 and 64. These amendments address the issue set out by the Minister this morning, but I make no apology for revisiting this and setting out our position so that it is on the record, although I take the point that he may not be able to answer all the points this afternoon.
Nevertheless, I should like us to have that debate. These amendments would remove the reference in Clause 22 to the regulator defining and imposing new controls on what is prohibited material on the internet. Noble Lords will know that there has been increasing concern about the implications of this wording. It is felt that it would give the regulator extended powers of censorship beyond that originally envisaged in the Bill. When our colleagues in the Commons originally raised concerns about press reports that the Bill could be used in practice to extend internet censorship for adults, the Minister, Matt Hancock, was quite clear. He said:
“I have also seen those reports. I think that they misread the Bill. That is neither our intention, nor our understanding of the working of the new clauses”.—[Official Report, Commons, 28/11/16; col. 1284.]
However, others have since put a different interpretation on the scope of the wording, so there has been ongoing concern about what can best be described as mission creep.
The purpose of Part 3 of the Bill is to provide protection for children from accessing online pornography. We all agree with this intention. However, as the wording stands, it potentially sets new limits on consenting adults accessing pornography that is not harmful to themselves or others. This is material that would not receive a film classification certificate, but neither would it be subject to prosecution. It is not helped by the fact that, by all accounts, the Crown Prosecution Service’s guidelines on this issue are out of date. There is a resulting grey area of pornography that by practice, but not by statute, is not prosecuted. We strongly contend that this is not the place to resolve these wider debates on adult consensual pornography. It is an issue for public debate and for consultation at another time.
In more recent days, Matt Hancock has met with various groups of us and has, I understand, accepted that the wording in the Bill is not as it was intended. He has proposed, albeit informally, that instead a definition of prohibited material should be based on that of extreme pornography, as defined in the Criminal Justice and Immigration Act 2008. We agree that this is a helpful proposal that could well resolve the debate.
We regret, therefore, that the Government were not able to produce an amendment along these lines in time for today’s Committee, which is really where some of these important principles should be resolved, before we get into the more formal, technical detail on Report. These amendments flag up our concerns with the current wording to urge the Government to come forward with detailed proposals before Report and, we hope, to build a consensus to go forward on this issue. Child safety is the issue here, not adult consensual pornography. I beg to move.

Lord Clement-Jones: My Lords, briefly, I strongly support what the noble Baroness, Lady Jones, said. That is why these Benches support the amendments. I took quite a look of comfort from what the Minister said early on in today’s proceedings. As the noble Baroness, Lady Jones, said, there are considerable concerns about the width of “prohibited material” and the very existence of that particular set of conditions inserted at a fairly late stage in the Commons.
Of course, we have talked about the site-blocking provisions but the prohibited material aspects really confuse the issue as they deal with access by adults. It was very useful having the meeting with the Minister and his colleague, Matt Hancock, to talk about these issues. Having discussed the matter, we felt that the proposed new definition of prohibited material, limited to the 2008 Act, was acceptable as that is very tightly defined. Again, I entirely agree with the noble Baroness that it was very disappointing that immediately after that meeting the wording as in this amendment was not made available or put down for the Committee.   That would have been enormously helpful in settling people’s concerns about the width of the definition of prohibited material, which goes well beyond the harm test used by the BBFC under the Video Recordings Act.
That is really the essence of it—tying it back. I hope the Minister will shortly explain this in greater detail than he did at the beginning of this session to allay our many fears about something fairly extraneous being introduced into the Bill. I stood corrected earlier by the noble Lord, Lord Maxton, about the exact purpose of Part 3, which is to prevent access by children to online pornography. We must be very clear that that is what we are about, rather than trying to censor the internet on a broader basis.

Lord Browne of Belmont: My Lords, on Second Reading, a number of noble Lords raised concerns about censorship and the definition of prohibited material. I found this surprising as we have so often heard the mantra that what is illegal offline is illegal online. Offline, the British Board of Film Classification has operated for a long time on the basis that it will not classify certain types of video work based on the content. This principle is well established and has been in statute since an amendment to the Video Recordings Act 1984 was made in 1994 after the Jamie Bulger murder. That requires the BBFC to have special regard to any harm to potential viewers. A “potential viewer” means,
“any person (including a child or young person) who is likely to view the video work in question if a classification certificate or a classification certificate of a particular description were issued”.
Moreover, it is of course an offence under Section 9 of the Video Recordings Act to supply a video work which the BBFC decided is not suitable for classification. It is also an offence under Schedule 10 to have such a work in possession for the purpose of distribution and supply.
As the Minister said in his closing speech at Second Reading:
“We do not allow children to buy pornographic material offline, and this material would not be classified for hard-copy distribution. The BBFC ?has a well-understood harm test and would not classify material that, for example, depicts non-consensual violent abuse against women, and it may not classify material which is in breach of the Obscene Publications Act, as clarified in guidance by the CPS”.—[Official Report, 13/12/16; cols.1228-29.]
The BBFC publishes its guidelines openly and publicly, and they are produced after wide consultation. In other words, what is classed as prohibited in terms of physical video works is not a surprise to anyone. The last guidelines were published in 2014. Given the argument for “parity of protection” and a level playing field across all media, when R18 material became subject to age verification controls for United Kingdom-based, video-on-demand programming in 2014, the term “prohibited material” was used and based on the material not allowed under the Video Recordings Act. Such material must not be made available by UK video-on-demand producers, meeting the Government’s commitment at the time to,
“ban outright content on regulated services that is illegal even in licensed sex shops”.
In this context, it is not at all surprising that the concept of prohibited material has been carried over to the Bill to bring a level playing field in terms of regulation. It would have been strange had that not happened, as the Government would be saying that this material was acceptable on one media platform but not another. Clearly, that is an unsustainable position.
The amendments in this grouping, which seek to remove prohibited material from the scope of the enforcement measures provided by Clause 22, are concerning. It is important to understand that they also undermine the efficacy of Clause 23, which depends on Clause 22 for its definition of prohibited material. The amendments are informed by the following logic: we want to protect children and the point of this legislation is that it will protect children; and as long as prohibited material is behind age verification checks it will not matter if this material, which is currently prohibited offline, is deemed for the first time to be legal online. I understand this argument but it is based on a false assumption about what the legislation does.
First, age verification requirements will be for the material that is defined as pornographic in Clause 16. That means material that would be classified as 18 and R18 by the BBFC. If material is deemed not suitable for classification, which would be the case for prohibited material, it would not be counted under the Section 16 definition as pornographic and therefore not subject to age verification controls. In theory, this material, which would not be classified by the BBFC, could still be freely available to children and young people on the internet. If that is the case, without enforcement action of the type set out in Clauses 22 and 23 there is no new protection of children from this type of material and the Government’s manifesto commitment is not met. If the Opposition want prohibited material to be accessed by age verification procedures, they would need to amend Clause 16 to bring such material within the scope of Clause 15(1).
Secondly, even if one sought to get round this problem by amending Clause 16 and place prohibited material behind age verification, one would still encounter two major difficulties, one legal and one practical. In the first instance, taking this step would make the current position of prohibited material offline and of UK-based video on demand completely unsustainable. That would constitute sweeping changes which would be completely wrong to introduce without a thorough public consultation. It would not be appropriate for us, or indeed the Government, to change such a long-standing arrangement without a full and detailed public consultation. In the second instance, even if prohibited material was put behind age verification checks, it is important not to fall into the trap of thinking that this makes children safe across the board and that adults can access what they like without concern. We must not forget that both the Government and the BBFC have been very clear that enforcement will be targeted at the bigger sites.
Let us consider the Government’s statements on their approach to enforcement of the age verification proposals. In their response to the public consultation on their age verification proposals, the Government said they wanted to:
“Ensure a targeted and prioritised regulatory approach to monitoring and enforcement, to achieve maximum impact. The Government’s preference is for the regulator to have discretion as to which sites and providers it takes enforcement action against. For example, the regulator should be able to focus on the most popular sites, those known to be most frequently accessed by children and young people, or the size or profitability of the provider”.
In their original consultation document, they had said:
“We anticipate that the sites on this list would be subject to change, and therefore that the regulator would need to regularly reassess the list of top sites. This would put the primary focus of regulatory activity on the sites most regularly visited by UK users, and which account for a proportionately far higher number of total visits to porn websites”.
Indeed, Clause 24 explicitly gives the age verification regulator the power to exercise its functions “principally” in relation to larger websites. The Explanatory Notes say that the clause gives the regulator discretion to,
“exercise its functions in a targeted way, to those providers of pornography who reach the most people or have large turnovers”.
Moreover, the BBFC, giving evidence to the Public Bill Committee in the other place, said:
“We would devise a proportionality test and work out what the targets are in order to achieve the greatest possible level of child protection. We would focus on the most popular websites and apps accessed by children— those data do exist. We would have the greatest possible impact by going after those big ones to start with and then moving down the list”.—[Official Report, Commons, Digital Economy Bill Committee, 11/10/16; col. 46.]
The BBFC suggested that its enforcement would start with the top 50 websites, which 70% of users access, while reminding the Committee that 1.5 million new pornographic website links come online every year.
Given that the Government have been quite open that enforcement will not apply to all websites, and the BBFC’s focused enforcement plans, it is extremely likely that smaller websites will not introduce age verification. In this context, it is simply wrong to suggest that because of the Bill children will not be able to see prohibited material and therefore adults can relax about what they choose to access. The Bill takes significant strides in the cause of child protection. It would be a shame if we in this House took steps to undermine this.

Lord Gordon of Strathblane: My Lords, time is somewhat against us this afternoon. I will be extremely brief. I pass no judgment on where the line should be drawn. I say simply that it is an unassailable argument that it should be drawn in the same place offline and online. Well before the internet of things arrives, the internet is already regarded as a method of distribution of DVDs, CDs and books, so it would be entirely illogical to have one rule offline and not implement it online.

Earl of Erroll: My Lords, first I thank the noble Lord, Lord Browne, for supporting my amendment in the last group about proportionality and the order in which websites should be tackled. Moving on to this group, I spoke to this set of amendments when we addressed this issue in the group starting with Amendment 54B—so I can abbreviate my speech and be quick. I support the noble Lord, Lord Browne, on  the point made in the part of the briefing he was reading about the Obscene Publications Act and the Crown Prosecution Service advice et cetera being out of step with each other and out of step with enough members of the public for it to matter—that is the real trouble. I had thought to mention one or two of the unsavoury practices that you might find that will not be classified under the current ruling in Clause 23, but I think I have been trumped by the newspapers.
Some in the BBFC probably see this as an opportunity to clean up the internet. But it is not going to work; it will have the reverse effect. This whole issue of what is prohibited material needs to be tackled in another Bill, with a different regulator or enforcer, so it does not get confused with the business of protecting children, which is the purpose of this Bill. It will not protect children anyway, as this material ought to be behind the age verification firewall in any event. In fact, the noble Lord, Lord Browne, pointed out why it might not be: you have a possible lacuna in the Bill. If you say that the material is stuff that the BBFC has classified, the really nasty stuff is not included, because it is not able to be classified—so suddenly Clause 23 might not apply to it. He is absolutely right there. This is one of the dangers, which is why they are having to try and draw in the idea of prohibited material. It would be much easier to remove prohibited material altogether.
It has been suggested to me that the easiest thing would be to alter Clause 16, which deals with the definition of pornography. Instead of having this very limited scope, it would be much easier just to have the one simple definition which is already in Clause 16(1)(e)(i), but with the wording slightly expanded to say, “Without prejudice to the application of the Obscene Publications Act 1959, any material produced solely or principally for the purposes of sexual arousal”. You could leave it at that, and then you would protect children from anything unsavoury that we do not want them to see. That is a much simpler solution than getting into this terribly complicated debate about what is prohibited material.

Baroness Howe of Idlicote: My Lords, I very much share the concerns expressed by the noble Lord, Lord Browne, about this set of amendments and prohibited material. As they stand, the amendments would have the effect of causing the Bill to place 18 and R18 material behind age verification checks, which Clause 16 limits to 18 and R18 material, while prohibited material would be freely available without any such protection. This would be pretty irresponsible and would show no regard for child protection. Even if the Bill was amended so that prohibited material was only legal online if placed behind age verification checks, we should not forget that the important strategy of targeting the biggest 50 pornography sites will not create a world in which children are free from accessing prohibited material, so that adults can relax and access it without concern. Even if the material was made legal online and given a BBFC classification, this would give a measure of respectability in the context of which it would no doubt become more widely available, and thus the chances of children seeing it would be further exacerbated.
Moreover, the crucial point is that we cannot make prohibited material legal in an online environment at the same time as maintaining the category of prohibited material offline. The former would inevitably result in the latter. Mindful of this, and of the fact that the category of prohibited material is long established, it would be wholly inappropriate for the House or indeed the Government to simply end the category of prohibited material online without a major public consultation. I very much hope that the Minister will completely reject these amendments and stand by what he said on this matter at Second Reading.

Baroness Benjamin: My Lords, I was very grateful to the Minister, Matt Hancock, and to the noble Lord, Lord Ashton, who met concerned parliamentarians to discuss the Government’s thinking about how to move forward on this issue. I look forward to seeing the wording around what will and will not be prohibited in order to ensure that the protections that apply offline also apply online. I believe that we need to build on the consensus in this House that children should be protected from harmful content online and I firmly believe that prohibited content is harmful to children.
The BBFC’s harm test under the Video Recordings Act, on which the definition of prohibited content is based, has proved to be an effective child protection standard offline with DVDs, and online with UK-regulated video-on-demand content. So I ask the Minister for an assurance that the Government remain committed to keeping prohibited content in the Bill. Most importantly, I ask the Minister to confirm that prohibited content will include content which covers simulated sexual abuse of child characters—and I stress sexual abuse in the widest sense, and not limited to rape and incest fantasies. I also want an assurance that the prohibited content I have set out covers not only realistic portrayals of children but CGI material. If this legislation is to be future-proofed, it is vital that CGI portrayals of child sex abuse are prohibited. I would welcome the Minister’s assurance that this will be the case.
This is not about freedom of speech, civil liberties, censorship or invasion of privacy; it is about the bigger case of putting children first, and of protecting and safeguarding our innocent children from harm. I often find myself in agreement with the Opposition Front Bench—but not on these amendments, which take too much risk with child safety. So I urge your Lordships to consider the implications very carefully before pursuing the wholesale removal of prohibited material from Clause 22.

Lord Ashton of Hyde: My Lords, this is an important debate, dealing not just with age verification but whether prohibited material should be included. I do not want to stand here and defend opposition amendments or put words into the mouth of the noble Baroness, Lady Jones, who can correct me if I am wrong, but I do not think that the object of the exercise was to completely get rid of prohibited material; it was to raise the extent to which the definitions may have exceeded what was originally intended. I say to the noble Lord, Lord  Browne, and others that the point is that the current definition of prohibited material in the Bill allows the BBFC to consider content based on its existing hard-copy guidelines. We recognise that some think this goes too far and therefore we are continuing to listen to views on that. On the other hand, asking the regulator to consider only classifiable pornographic content creates the real risk that more extreme content will proliferate further.
I realise that it would have been easier if we had had a definition in front of us today. I know that we have discussed this with various noble Lords. The noble Lord, Lord Clement-Jones, is obviously teasing me because he knows that it takes time. As a lawyer, he will know that these issues are complex, and we have to make sure that all parts of government are happy with the wording. I shall repeat, for the benefit of the noble Baroness, Lady Benjamin, and other noble Lords, the important bits of what I said this morning. It is our intention to protect children from harmful content. Therefore, we have listened to the arguments that, in so doing, the drafting of the Bill may have unintentionally extended the powers of the regulator too far.
I committed this morning—and do so again—to giving this further consideration in order to reach a conclusion that this House agrees is a satisfactory way of meeting our aims of protecting children from harmful pornographic content. I repeat my offer to discuss this with interested Peers. I think that the noble Lord, Lord Browne, and the noble Baroness, Lady Howe, can be temporarily satisfied that we do not intend to get rid of prohibited material entirely. There is not much more to say at the moment, but we will come back to this on Report. In the meantime, I would be grateful if the noble Baroness would withdraw her amendment.

Baroness Jones of Whitchurch: I am grateful to the Minister. He is absolutely right and I am sorry if I did not make that clear. When we were proposing to take those words out, we were rather hoping that somebody would come up with a definition that would replace them—it was not just an attempt to take them out finally and for ever. It rather highlights the fact that we do not have another form of words to be working with today.
I do not envy the Minister in trying to balance all these different desires to get the wording right. We agree with the principle that offline and online should be dealt with on the same basis, but the problem is that in practice, what happens with offline material is not what is necessarily captured in the current legislation. That is the difficulty we are trying to grapple with. Our aim is to maintain the status quo. We do not want to ruffle any feathers or change anything. We want to make sure that what people can access online has the same checks and balances as offline has at the moment. The problem is the lack of a current substantial legal definition. As I said, there is a grey area, so we have to work our way through it. That is the difficulty.
As I said, I do not think that we should start redefining anything massively without a public consultation. People have talked about that and I agree. We are simply trying to protect the status quo so that adults who currently look at material can carry  on looking at it—and this has nothing to do with child protection and children’s access to pornography. We need to understand what we are aiming for, but it is a question of getting the wording right. I am sure that the noble Lord will come up with something with which we can all agree in the medium term. In the meantime, I beg leave to withdraw the amendment.
Amendment 57 withdrawn.
Amendments 58 to 64 not moved.
Clause 22 agreed.
Amendment 65 not moved.

  
Clause 23: Age-verification regulator’s power to direct internet service providers to block access to material
  

Amendment 66 not moved.
Clause 23 agreed.

Amendment 67

Moved by Lord Ashton of Hyde
67: After Clause 23, insert the following new Clause—“No power to give notice under section 23(1) where detrimental to national security etc(1) Before giving a notice under section 23(1) requiring an internet service provider to—(a) take steps referred to in section 23(2)(c)(i), or(b) put in place arrangements referred to in section 23(2)(c)(ii),the regulator must consider whether the steps or arrangements would be likely to be detrimental to a matter mentioned in subsection (3).(2) The regulator may not give a notice under section 23(1) where it appears to the regulator that the steps or arrangements would be likely to be detrimental to any of those matters.(3) The matters are—(a) national security;(b) the prevention or detection of serious crime, within the meaning given in section 263(1) of the Investigatory Powers Act 2016;(c) the prevention or detection of an offence listed in Schedule 3 to the Sexual Offences Act 2003.”
Amendment 67 agreed.

Amendment 68

Moved by Lord Paddick
68: After Clause 23, insert the following new Clause—“Anonymity(1) Age-verification providers must be approved by the Age-Verification Regulator.(2) In this section an “age-verification provider” means a person who appears to the Age-Verification Regulator to provide, in the course of a business, a service used by a person to ensure that pornographic material is not normally accessible by persons under the age of 18.(3) The Age-Verification Regulator must publish a code of practice to be approved by the Secretary of State and laid before Parliament.(4) The Code must include provisions to ensure that Age-Verification Providers—  (a) perform a Data Protection Impact Assessment and make this publicly available,(b) take full and appropriate measures to ensure the accuracy, security and confidentiality of the data of their users,(c) minimise the processing of personal information to that which is necessary for the purposes of age verification,(d) do not disclose the identity of individuals verifying their age to persons making pornography available on the internet,(e) take full and appropriate measures to ensure that their services do not enable persons making pornography available on the internet to identify users of their sites or services across differing sites or services,(f) do not create security risks for third parties or adversely impact security systems or cyber security,(g) comply with a set standard of accuracy in verifying the age of users.(5) The code must include provisions to ensure that publishers of pornographic material take full and appropriate measures to allow their users to choose the Age-Verification Provider of their preference.(6) Age-Verification Providers and publishers of pornographic material must comply with the code of practice.(7) To the extent that a term of a contract purports to prevent or restrict the doing of any act required to comply with the code, that term is unenforceable.”

Lord Paddick: The amendment is in my name and that of my noble friend Lord Clement-Jones and the noble Baroness, Lady Jones of Whitchurch. I have to say that it is only because we were quicker on the draw that I am leading on this amendment rather than the noble Baroness.
As I have previously alluded to, we believe that age verification is not sufficient protection for children on the internet. It can easily be circumvented, and it would be very difficult to place age verification on such platforms as Twitter and Tumblr. In relying on this mechanism, there is a danger of diverting attention away from other important and effective methods of addressing the issue of children accessing adult material online. Despite our misgivings, we believe that everything should be done to protect the privacy of those who have their age verified to enable them to access adult material on the internet. I am grateful to the Open Rights Group for its briefing and suggested amendment on this issue, which is the wording we have used for our amendment.
Age verification systems almost inevitably involve creating databases of those who are accessing adult material. It is completely lawful for those who wish to look at adult material to access these websites, but it is a sensitive area and many will be wary about or even deterred from accessing completely legal websites as a result. Security experts agree that unauthorised hacking of databases is almost inevitable, and the advice to organisations is to prepare contingency plans for when rather than if their databases are accessed by those without authority to do so. The consequences of breaching databases containing sensitive personal data can perhaps be most starkly illustrated by the public exposé of the personal details of those who were members of Ashley Madison, which reportedly resulted in two suicides.  The risk to privacy can be reduced if the age verification regulator approves minimum standards for age verification providers. These are set out in the amendment.
The amendment suggests that the age verification regulator publish a code of practice, approved by the Secretary of State and laid before Parliament. The code of practice should ensure that everything possible is done to protect the privacy of users and to allow them to choose which age verification system they trust with their sensitive personal information. For example, some websites provide a service that enables users to prove their identity online, including their age, for purposes unconnected with access to adult material but which could also be used for that purpose. The full extent of the provisions are set out in the amendment, and the evidence in support of the amendment is set out in the Open Rights Group’s updated briefing on the Bill.
The Constitution Committee addressed this issue in its 7th report of 2016-17:
“We are concerned that the extent to which the Bill leaves the details of the age-verification regime to guidance and guidelines to be published by the as yet-to-be-designated regulator adversely affects the ability of the House effectively to scrutinise this legislation. Our concern is exacerbated by the fact that, as the Bill currently stands, the guidance and guidelines will come into effect without any parliamentary scrutiny at all. The House may wish to consider whether it would be appropriate for a greater degree of detail to be included on the face of the bill”.
That is exactly what this amendment attempts to do. I beg to move.

Earl of Erroll: My Lords, I want to say a few words because I have been working on the issue of age verification for a long time. I became interested in it when it became apparent a couple of years ago that it was going to come to the top of the agenda. For the last year or so, the Digital Policy Alliance, which I chair, has been working with the British Standards Institution to produce a publicly available specification—PAS 1296—exactly on this issue. Its whole point is to enable anonymised verification of the attribute of your age. People have said that you would have to give the information to the adult content site, the porn site, but you do not necessarily need to.
There are two stages: when the child, or the adult, first arrives at the site; and, if they are allowed into the site, what they then do. At the point when they come to the front page of the site, where they should be asked to prove their age, there should be an option—and this is the point about anonymity—that allows them to bounce off, with a token, to an age verifier. I have on my smartphone, for instance, one from Yoti. I can identify myself to Yoti; it knows about me and can send an encrypted token back to the website, which does not contain any identity information at all—purely the fact that I am over 18. If the regulator later needs to unravel the token because it appears that rules have been breached, it is possible to present the token and start unravelling it—but only with proper powers. The point is that a hacker cannot find out who presented that token. So it is possible now to do what is necessary.
That answers the point made by the noble Lord, Lord Maxton. The problem with an identity card is that it will identify you. If you gave your identity to one of these websites and it happened to be hacked,  like Ashley Madison, and if you were a Cabinet Minister—or even like most of us here, actually—your career would probably be in ruins. So I think it is essential that people be permitted anonymity. That is why, I am afraid, I am not in favour of the identity card method. There are other similar ways of doing the same thing—

Lord Maxton: I would, maybe, accept the noble Earl’s point in this particular context, but the ID card has, of course, a variety of different uses—particularly if it is a smartcard—rather than just this one.

Earl of Erroll: Absolutely; I know what the noble Lord means. I simply meant that this is not necessarily an ID application—except, maybe, to identify yourself to the site which then gives your attribute to the other website.
I am thoroughly in favour of the amendment, and so is the industry. We hope to publish a standard on this in the not-too-distant future, which may help the regulator determine who is a fit and proper person to carry it out.
There is just one other thing I want to say. Once you have done your age verification and then go on to the website, if you then choose to subscribe, and give it your credit card number and everything else, that is up to you. I hope and trust that the sites—I know that they are pretty careful about this—will encrypt properly and guard the information with their lives, if not yours.

Lord Clement-Jones: I do not want to overload the Front-Bench contributions from this side, or to turn this into a mutual admiration society, but I want to say that the noble Earl, Lord Erroll, has played a blinder in educating many of us in this House about the possibilities and the technologies being developed on anonymised age verification. As the Minister probably knows, we had a very useful session with many of those developing new apps for this precise purpose. Yoti was one, VeriMe was another—one could go on. There are different types of age verification, which can be chosen by the consumer. The most recent, which is now virtually available for general use, is Yoti, which the noble Earl mentioned. These methods are now available for use; this is not a question of pie in the sky, or of things not being available for a year or so. That makes the amendment highly practical, and, as my noble friend said, it is absolutely essential for the protection of personal privacy.

Baroness Benjamin: My Lords, I support the amendment and congratulate the noble Earl on all the hard work he has done. Six months ago I told him to get on with it, and he certainly has. We had a presentation, and I was so impressed by the progress that has been made in this area. Congratulations, and I thank him very much for all that he and his colleagues are doing to make sure that our children are safe, and that people feel that their data are protected if they go online for age verification.

Baroness Jones of Whitchurch: I support the comments that have been made by a number of noble Lords. I think we all understand the need for particular care to protect the identity of those who are over 18 and legitimately want to access pornographic sites. Apart from anything else, as has been said, we must protect those individuals from blackmail threats.
In this respect, the age verification process has to be more rigorous in providing anonymity than other regulations where proof of credit card details may have sufficed, but may also have made identification of the individual all too easy. The noble Baroness, Lady Howe, is not in her place, but I understand that the site that does the gambling checks does it on the basis of credit card details. Clearly, that would not be appropriate in the context of the issues we are grappling with here.
Thankfully, as we have heard, the technology is catching up with the need and there are now new age verification provider sites that can carry out the age checks. I am grateful to the noble Earl, Lord Erroll, for explaining in some detail how that works; it is all very reassuring. I do not think I have anything else to add: we have a consensus that some such measure needs to be built into the legislation, and I hope the Minister will agree with us.

Lord Ashton of Hyde: My Lords, I am grateful to all noble Lords again, particularly the noble Earl, Lord Erroll, for the teach-in.
Amendment 68 calls for the regulator to approve age verification providers and to publish a code of practice with which those providers must comply. This was similar or identical to the amendment that was rejected in the other place in Committee and on Report. I am afraid that the Government do not consider this clause necessary. However, I can assure noble Lords that we approach this issue with the utmost seriousness.
Clause 15(3) already requires the regulator to publish guidance about the types of arrangements it will treat as being in compliance. As the noble Earl explained, the technology is with us and the providers of age verification controls will be subject to data protection laws. The BBFC is already in discussion with the Information Commissioner’s Office to ensure that best practice is observed. It has indicated that it will give the highest priority to ensuring that the guidance it issues reflects data protection standards. The Government and the BBFC are also in discussion with the Information Commissioner’s Office on privacy and data requirements to ensure that the appropriate guidance is issued, as they are experts in this field.
The Delegated Powers and Regulatory Reform Committee has additionally made a recommendation on the approach to the types of arrangements for making pornographic material available that the regulator will treat as complying with Clause 15(1). We are considering whether we can address those concerns and, as I said, will respond as soon as possible.
As the noble Earl explained, innovative age verification solutions are coming to market, and we want to ensure that the regulator is enabled to make a determination as to the sufficiency of different and new controls. As noble Lords know, there are existing privacy and data security protections provided by the Data Protection Act 1998, administered by the Information  Commissioner’s Office. The Act established a framework for the protection of personal data, balancing the privacy rights of individuals with the legitimate needs of organisations to make use of such data. It ensures respect for individuals’ rights to privacy and keeps their personal information secure from abuse. The Act ensures that data are handled safely and securely. It is right therefore that we do not seek here to duplicate this legislative and regulatory framework. However, we agree that we must ensure that it is built into the age verification process in a meaningful way and, as I have said, we will provide a response to the DPRRC recommendation on this matter. In the meantime, I hope the noble Lord will withdraw the amendment.

Lord Paddick: My Lords, I am very grateful for noble Lords’ contributions to this short debate, particularly to the noble Earl, Lord Erroll, for illustrating how a system as set out in our amendment already exists. I join my noble friend Lord Clement-Jones in thanking the noble Earl for his work with the industry. I thank my noble friend Lady Benjamin for driving him on, apparently. I also thank the noble Baroness, Lady Jones of Whitchurch, for her support for the amendment.
The Minister said that the amendment was not necessary despite the Constitution Select Committee believing that such an amendment is necessary. On that basis, I cannot give an undertaking that we will not return to this issue on Report. However, at this stage, I beg leave to withdraw the amendment.
Amendment 68 withdrawn.
Amendment 68A had been withdrawn from the Marshalled List.
Amendment 68B not moved.

  
Clause 24: Exercise of functions by the age-verification regulator
  

Amendment 69 not moved.
Clause 24 agreed.
Clause 25 agreed.
Amendment 69A not moved.
Clause 26 agreed.

Amendment 70

Moved by Baroness Jones of Whitchurch
70: After Clause 26, insert the following new Clause—“Review of online abuse(1) The Secretary of State must carry out a review of online abuse.(2) In conducting the review, the Secretary of State must consult—(a) specialists in child protection;(b) people and organisations who campaign for child safety on the internet; and(c) any other persons and organisations the Secretary of State considers appropriate.(3) The Secretary of State must consider measures to prevent online abuse and harassment.(4) The Secretary of State must lay a report of the review before each House of Parliament within six months of the passing of this Act.”

Baroness Jones of Whitchurch: My Lords, as well as moving Amendment 70, I shall also speak to Amendments 71AA and 71AB, all of which would add a new clause to the end of Part 3 of the Bill. The amendments are all, in different ways, trying to move forward on the increasing social evil of online abuse and trolling.
Amendment 70 would require the Secretary of State to carry out a review of online abuse, consult widely and report back to Parliament within six months of the passing of the Act. Amendment 71AA would require commercial internet sites that host personal accounts to take responsibility for the material posted on the sites, issuing a safety impact assessment, informing the police of violent threats and removing posts that incite violence. Amendment 71AB would require the Secretary of State to issue a code of practice with which social media platform providers must comply and which would include how they should respond to online abuse and how they should protect children. We believe that our amendments all provide the Government with a road map for action on an issue of huge social concern. They are in themselves probing amendments, but provide practical solutions that we hope the Government will take seriously.
The deluge of online abuse has massive child welfare implications. We know that social media sites are increasingly being used to bully, bribe and intimidate young people. The charity Childnet has identified that one in four teenagers suffered hate incidents online last year, and the incidents are increasing. Teenagers with disabilities and from minority ethnic groups are disproportionately targeted. Schools are reporting that malicious posts, personal abuse and fabricated stories are undermining young people’s self-esteem, distorting their self-image and encouraging risky behaviour. All these trends are having a knock-on effect on child mental health, with demand for support increasing and services unable to cope. For example, a record 235,000 young people accessed mental health services last year, but many others were denied the help they need.
I have focused on young people, but we know that this is also a problem in the adult world. The recent survey of MPs highlighted the threats of violence, appalling levels of anti-Semitism and sexist abuse. The MP Luciana Berger has spoken openly about the torrent of anti-Semitic abuse she has received, including threats of violence. The latest reports show a 36% increase in anti-Semitic incidents last year. Luciana reported that Twitter was slow to act, even when cases were drawn to its attention, and that the police and social media did not co-operate effectively to intervene when allegations were made. Even when prosecutions took place, some of the abuse sites could still be accessed on Twitter. Other women MPs have been subjected to graphic messages threatening rape and murder, and we know that those are not always idle threats, as the tragic death of Jo Cox all too starkly reminded us.
Of course, the abuse directed at MPs is a tiny example of what is happening day in, day out, both to those in public office and to private individuals. Some of these incidents are investigated and some are not.   For example, we know that 155 people were jailed for sending grossly offensive, indecent or obscene material. Equally, we know that that is the extreme end of trolling, and that many other people have reported that their complaints were not taken seriously. It feels as though we are no longer in an agreed area for behaviour. There are no longer clear rules about what is acceptable and there are no longer clear penalties for those that transgress them.
We do not pretend that the measures we are proposing will be a panacea that will resolve these huge social challenges, but we hope that they might be a first step to capturing the scale of the problem and giving people more reassurance about the direction of legislation in the future.
When a similar amendment calling for a review was considered in the Commons, the Minister, Matt Hancock, passed the problem back to the industry. He said that,
“we expect social media and interactive services to have in place robust processes that can quickly address inappropriate content and abusive behaviour on their sites”.—[Official Report, Commons, 28/11/16; col. 1276.]
He went on to say that fast-changing technology made legislating difficult and that the existing action being taken by social media companies was the best approach. This is not an adequate response. The social media sites have been extremely slow to face up to their responsibilities, and they have proved to be very reluctant to intervene and take down abusive content. There is also a huge grey area as to where the police will intervene and what protection the public can expect them to provide.
We believe that initiatives of the kind that we are proposing here are timely and necessary. They would allow a proper debate about the rules of online interaction in the future and would help to clarify the responsibility for who should uphold those rules. This problem will not go away; it will get worse. Our amendments would provide the first step to getting our public norms and standards back in balance, and I hope that noble Lords will support this initiative. I beg to move.

Baroness Janke: My Lords, this group of amendments includes Amendment 233A, which is in my name and that of my noble friend Lord Clement-Jones. When I read the initial amendments proposed by the noble Baroness, Lady Jones, I felt supportive towards them. They relate particularly to children, but, as she has said, there is also an issue with regard to adults.
As the noble Baroness, Lady Jones, said, not only Members of Parliament have suffered and spoken about this—and I am glad that they have done so—but people with disabilities or learning difficulties. Social media sites are often used as a tool by stalkers, and, as the noble Baroness said, such behaviour has led to people suffering mental illness and, at times, to murder. I very much support the amendments in her name. The difference between them and my amendment is that mine would introduce a criminal test under the guidance of the CPS. I think we all agree that we must have some form of enforcement of the action that should be taken against this form of behaviour.
It seems to me that the providers have to take some responsibility. It was put to me that, if people were damaging themselves fighting and stabbing each other in a pub, the landlord would have some responsibility for that. The internet service providers also have some responsibility in this matter.
I realise that this is a difficult area to legislate for, and I know that there are other forms of legislation. Here we are looking for a way to work with interested parties, such as the NSPCC. We have made progress on action for children, but we are woefully behind in taking action against this damaging behaviour against adults.
I very much support the amendments in the name of the noble Baroness, Lady Jones, and I hope that the Minister might support some of the sentiment, and the letter, of my Amendment 233A.

Baroness O'Neill of Bengarve: My Lords, I had not intended to speak on this point, but this may be relevant evidence. Last year, I went to a meeting with a parliamentary group that was looking at hate speech issues, and a representative of Facebook was there. She said—one may say that this did not show quite a correct view of freedom of expression—that Facebook takes down whatever its customers find offensive. A member of the public said, “Actually, when you have had 20 independent complaints, you take it down and it is immediately put up again”. That second step is where the remedies are not working at present. It does not get taken down. This was mainly about anti-Semitic hate speech of a vile sort that would have been well known in certain quarters in the 1930s. This is an urgent matter, which we need some remedy for.

Earl of Erroll: My Lords, it has been suggested to me that this group of amendments could also be used in the code of practice and the safety responsibilities could also be drawn up to include non-age-verified pornography.

Lord Ashton of Hyde: My Lords, the Government take the harm caused by online abuse and harassment very seriously, and we will continue to invest in law enforcement capabilities to ensure that all online crime is dealt with properly.
Amendment 70 would require the Government to carry out a review of online abuse and lay a report before Parliament within six months of Royal Assent. We do not believe that it is necessary to include provision for a review in primary legislation. As part of the ending violence against women and girls strategy, we have established an official government working group to map out the current issues, prevalence, initiatives and barriers to addressing gendered online abuse and to produce an action plan.
We are absolutely clear that abusive and threatening behaviour is totally unacceptable in any form, either offline or online. As the Committee will be aware, any action that is illegal when committed offline is also illegal if committed online. Current legislation, some of which was passed before the digital age, has shown itself to be flexible and capable of catching and punishing offenders, whether their crimes were committed by  digital means or otherwise. The Protection from Harassment Act 1997 was amended to introduce two new stalking offences to cover conduct that takes place online as well as offline. In addition, the Government will be introducing a new civil stalking protection order to protect victims further.
We will continue to take action where we find gaps in the legislation, just as we did with cyberstalking, harassment and the perpetrators of grossly offensive, obscene or menacing behaviour, and of course we introduced a new law making the fast-growing incidence of revenge porn a specific criminal offence.
The Law Commission recently consulted on including a review of the law covering online abuse as part of its 13th programme of law reform, which will launch later this year. It is expected to confirm with Ministers shortly which projects it proposes should be included.
We are also working to tackle online abuse in schools and have invested £1.6 million to fund a number of anti-bullying organisations.
In addition, we are working to improve the enforcement response to online abuse and harassment so that it can respond to changing technologies. The Home Office has also allocated £4.6 million for a digital transformation programme to equip forces with the tools to police the digital age effectively and to protect the victims of digital crime, including online abuse and harassment. Police and prosecutors evidence offences carried out digitally, non-digitally or both. The CPS Guidelines on Prosecuting Cases Involving Communications Sent via Social Media makes clear the range of criminal law which can be brought to bear on offences committed through social media. Moreover, from April 2015, police forces have been recording online instances of crimes, including stalking and harassment.
I shall talk about the next three amendments together, as they all cover the duties of social media sites. Amendment 71AA seeks to make it a requirement for all social media sites to carry out a safety impact assessment. Amendment 71AB seeks to require Ministers to issue a code of practice to ensure that commercial social media platform providers make a consistent and robust response to online abuse on their sites by identifying and assessing online abuse. Amendment 233A seeks to impose a duty on social media services to respond to reports posted on their sites of material which passes the criminal test—that is, that the content would, if published by other means or communicated in person, cause a criminal offence to be committed.
The Government expect social media and interactive services to have robust processes in place that can quickly address inappropriate content and abusive behaviour on their sites. On the point made by the noble Baroness, Lady O’Neill, it is incumbent on all social media companies to provide an effective means for users to report content and perform the actions that they say they will take to deal with this. We believe a statutory code of practice is unworkable because there is no one-size-fits-all solution. Dealing properly with inappropriate content and abuse will vary by service and incident. Technological considerations might differ by platform and as innovation develops. Users will benefit most if companies develop their own bespoke approach for reporting tools and in-house processes.
Social media companies take down content that is violent or incites violence if it breaches their terms and conditions. We expect them to inform the police where they identify significant threats or illegal activity happening on their sites. It is, however, extremely difficult to identify where the threat has come from and whether it is serious. We work closely with companies to flag terrorist-related content and have so far secured the voluntary removal of over 250,000 pieces of content since 2010.
I can assure the Committee that we share the sentiments expressed in these amendments. At the moment, though, they are not practical or necessary, so I hope on that basis noble Lords will not press their amendments.

Baroness Jones of Whitchurch: My Lords, first, I am grateful to the noble Baroness, Lady Janke, for stressing her point on enforcement. That is at the heart of the debate that we are having today. A lot of fine words are being said, but they are lacking the guts and enforcement to make any real change.
I am also grateful to the noble Baroness, Lady O’Neill, who quite rightly made the point that material does not consistently get taken down. That very much chimes with evidence that we have received as well. Luciana Berger MP has made the point that, even when a case of anti-Semitism was taken to court and the perpetrator was taken to jail, the site that they had created stayed up on social media and was still there for anyone to access—that cannot be right. It raises questions about the responsibility of social media sites and whether they are acting with enough responsibility and consistency.
I was really saddened by the Minister’s response this afternoon, because I felt there was a degree of complacency in what he said. I do not know how much more evidence he needs to realise that the current arrangements are not working. As we have been saying, children and adults are suffering. There does not seem to be a mechanism where, if you feel that you are being abused, threatened, or having vile things said about you on sites, you can get any consistent recourse to have the matter dealt with. People say, time and again, that social media sites and the police are not working together consistently. On some occasions social media sites take action, but then the police do not follow it up. Sometimes it is vice versa: the police get involved, but then the social media sites do not carry out their responsibilities. This needs another look at—whatever the level or structure for which that is appropriate.
I will not press my amendments today, but I will not give up on this issue. I say to the noble Lord—and it may be that we can have further discussions on this—that a more robust response is needed from the Government than we have had so far, so I hope we can carry on this discussion. I beg leave to withdraw my amendment.
Amendment 70 withdrawn.

Amendment 71

Moved by Baroness Jones of Whitchurch
71: After Clause 26, insert the following new Clause—“Internet pornography: requirement to teach age requirement and risks as part of sex education  After section 403(1A)(b) of the Education Act 1996, insert—“(c) they learn about the risks and dangers of internet pornography, and the legal age requirement to access internet pornography under Part 3 of the Digital Economy Act 2017.””

Baroness Jones of Whitchurch: My Lords, Amendment 71 requires schools to teach the risks and dangers of internet pornography, as well as an understanding of the new age restrictions which will apply to accessing pornography. This is not a new issue. For the last six or seven years we have been pushing for updated guidance on sex and relationship education. It remains a mystery as to why the Government have been dragging their feet on this issue for quite so long. The fact that our amendment addresses only part of this bigger demand results from the restrictions placed by the scope of the Bill, rather than from a watering down of our commitment to PSHE being a mandatory part of the school curriculum.
Our demand is also not a party-political issue: it has huge cross-party support. The recent report of the Women and Equalities Committee, chaired by Conservative Maria Miller, highlighted growing levels of sexual harassment and sexual violence in schools. It found that children were sharing revealing images of themselves online and that watching pornography is becoming commonplace. It also found that sexual abuse of girls has become an accepted part of everyday life in schools. At the same time, chairs of four Select Committees, alarmed by the evidence they had seen of online and personal abuse, have written to the Secretary of State urging her to make an updated SRE curriculum compulsory. We also know that Ofsted has said that the teaching of PSHE is not yet good enough.
A clamour of parents, teachers and even pupils themselves has said in surveys that they need more help to understand the dangers of internet imagery and abuse, and to make young people more self-aware and resilient. A recent NSPCC report identified that children exposed to sexually explicit material developed unrealistic attitudes about sex and consent, including an increase in risky sexual behaviour. A recent IPPR report identified that almost eight out of 10 young women said that access to pornography put pressure on girls to look and act in a certain way.
In the meantime, the number of sexual offences in schools reported to the police has risen to 5,500, more than 1,500 of which were from children aged under 13. There is no doubt that this is the tip of the iceberg, so why have the Government failed to act on what is a crucial child safety issue? Apparently, Justine Greening has indicated that the issue is near the top of her in-tray. The noble Lord, Lord Nash, said in this Chamber last year that he hoped to have something more to say on this issue shortly. But when a similar amendment was debated in the Commons during the course of the Bill, the Minister, Matt Hancock, said that,
“the measure is not necessary, because e-safety is already covered at all stages in the new computing curriculum that was introduced in September 2014”.—[Official Report, Commons, 28/11/16; cols. 1275.]
We believe that this response completely misses the point about where this education should take place. It is not just a technical question about online safety; it should be taught by professionals who are able to explore the importance of sex in the context of strong, mutually respectful relationships. This is why we believe the right place for this education is as part of a compulsory sex and relationships curriculum. Most experts, parents, teachers and children agree with us. Therefore, I beg to move the amendment.

Lord Storey: My Lords, I added my name to the amendment. I find it bizarre that we have spoken for a couple of hours now about the dangers of internet pornography, and we have rightly worried about sexting, the harm that inappropriate images would cause to children, and about possible dating sites, but when it comes to educating children and young people we wring our hands and walk away from it. I do not understand that. Any parent would want their children to know what is going on. As the noble Baroness said, any child would want to have professionals talking these issues over with them and educating them about them.
Children need to be taught about the dangers of meeting people online, the risks of dating apps, the consequences of sexting and the problem that young girls feel they have to look and appear in a certain way. No wonder the levels of anxiety and depression among teenage girls are, as we have heard, the highest ever. Research by the DfE—not some distant organisation, but the Government’s own department—found that 37% of girls feel miserable and worthless. That should not be happening in 2017. What on earth is going on? There are frightening levels of self-harm, with a 52% increase in the number of admissions of self-harming children under the age of 16.
I congratulate the noble Lord, Lord Stevenson, on putting down this amendment. He and many Members of this Chamber—on the Government Benches, on the Opposition Benches and on the Cross Benches—know that we have raised this issue over and again. During all the time that we have pressed for such a measure to be introduced, the Government have shrugged their shoulders and said, “Well, you can do it”. Yes, it is compulsory in maintained schools, but it is not compulsory in academies or free schools. As academies now make up more than 70% of our secondary schools, there is real concern about what is happening with sex and relationship education.
It is interesting that Ofsted found in 2013 that 40% of schools that offered sex and relationship education required improvement or were inadequate in their provision of it. Even though schools provide the subject, there is real doubt about the quality of that provision. The noble Baroness was right that it has to be properly taught and that we have to ensure that the syllabus is of the highest possible level.
I want to cite a couple of other figures which highlight how worrying this whole issue is. In 2016, a parliamentary report found that almost a third of 16 to 18 year-old girls had experienced touching at school, while 70% of 11 to 15 year-olds in England said that they believed sex education should be  compulsory, and a whopping 94% said that they wanted to learn about the risks and consequences of sharing pictures with people online or on social media. Our own children want us to make this subject available at school. Will we not listen to them? Barnardo’s research shows that three-quarters of young people believe that sex and relationship education would make them feel safer.
What are the arguments against? It used to be, “Well, this is for the parents to do”. The argument that I now hear raised from time to time is, “Well, we couldn’t really force faith schools to teach sex and relationship education, because some aspects of it might go against their own religious belief”. Really? I just do not accept that. Faith schools do a hugely important job in our society, but part of that job must also be protecting our young children. I and my party wholeheartedly support this amendment.

Baroness Kidron: My Lords, since the Bill introduces age verification, it follows that that children must be informed users. Not only does that make it more likely that they observe it but it would give teachers the necessary opportunity to discuss what they might find a difficult subject. Like others, I believe that this is a tiny part of a broader picture.
As some noble Lords know, I regularly speak in schools about pornography but more broadly about young people and their relationship to the internet. I have to report to the Committee that they have a palpable appetite for better digital education, not only SRE but a much broader digital education. By that, they mean a comprehensive understanding of the purposes and methods by which platforms and businesses interact with them, their rights as consumers and citizens and their urgent desire for some code of conduct. Interestingly, they want a code of conduct that covers their behaviour to each other. They also want a code of conduct that would determine the behaviour of businesses and platforms towards them. Above all else, you find what they want is a single moral landscape that recognises that the distinction between online and offline is completely immaterial to them.
Part 3 of the Bill deals with a single issue and this amendment deals with a narrow piece of learning. But the young people I speak to yearn for more. They repeatedly complain that e-safety is narrow, repetitive, badly delivered, and comes in the wrong lessons and from the wrong teachers. Although they themselves have fast fingers, many if not most have little idea of the workings of the technology they are using, let alone the full gamut of risk, from fake news to fake friends. A young person who can spot spam without clicking, is one less likely to see the unwanted adult sexual content that is our subject today. A young person who is knowledgeable about the way their personal data are collected is less likely to make bad decisions about what, where and when to give them up.
Children are not simply the objects of our concern; they are participants in their own good outcomes. We must learn to listen to their stated needs, not relentlessly pursue an adult agenda. I direct the Minister to the recent report of the Children’s Commissioner, Growing up Digital; to the report published this week, The Internet  on our Own Terms, which captures the policy recommendations of young people; and to the evidence collected by the Communication Committee’s inquiry “Children and the Internet”, all of which has a great deal to say about the value, nature and scope of the education that children need.
In supporting this amendment I ask the Minister not only to recommend it to colleagues, but to listen very carefully to young people about the scope of the learning and the manner of teaching that they feel makes them secure and able users of the internet, which ultimately will help them to be contributors to the cultural shift that must accompany the legislation that is in front of us.

Lord Paddick: My Lords, I shall speak very briefly, as my name is on this amendment, to support what other noble Lords have said and echo the noble Baroness, Lady Jones of Whitchurch, in that we also tried to table a broader compulsory sex and relationship education amendment to the Bill but were told it was out of scope.
We have to address the fact that despite our best efforts young people, and indeed very young children, will be confronted with inappropriate images and inappropriate adult material on the internet, and they need to be taught how to respond. They need to be taught to turn it off immediately and to tell their parents about what is happening. Older children need to be told that the way in which actors in pornographic films treat each other is not the way that we expect our young people to treat each other.

Lord Ashton of Hyde: My Lords, I think we can all agree—and I certainly do—that this amendment has expressed very worthy concern about the safety of young people growing up in modern Britain today, and it is of great interest to many Members of this House and Members of the other place too.
As we have always said, age verification is not a panacea, and should certainly not be seen as the limit of child online protection activity in which the Government and key stakeholders are involved. Age verification controls are a part, but not all, of the approach to protecting children from potentially harmful content online. Education, awareness-raising with parents and carers, and equipping children with the resilience and tools to deal with their online experiences are critical. So I can agree with much of what the noble Lords, Lord Storey and Lord Paddick, and the noble Baroness, Lady Kidron, have said on this subject.
Keeping Children Safe in Education, the statutory guidance for schools and colleges on safeguarding children and safer recruitment, sets out that governing bodies and proprietors should ensure that children are taught about safeguarding, including online, through teaching and learning opportunities as part of providing a broad and balanced curriculum.
As my honourable friend the Minister of State for Vulnerable Children and Families, Edward Timpson, has said in previous debates during the passage of the Children and Social Work Bill, this Government heard the call for further action on improving the quality of PSHE provision in schools and we are fully committed to exploring all the options available. I  understand that this will come up in the Report stage for that Bill in the other place, where the Government committed to providing an update to Parliament on the issue.
This Government are clear that to improve provision any change must be made in the right way with proper consideration of all the issues, including online safety. I assure the Committee that the Government are committed to handling this important matter well. We intend to work with stakeholders and listen to the voices of young people over the coming months. With that assurance, I hope the noble Baroness can withdraw her amendment.

Baroness Jones of Whitchurch: I thank the Minister and the other noble Lords who spoke in support. What the Minister said was quite right: if we were to start drafting Part 3 on our own terms, it would begin with education and everything else would filter down after that. The age verification process is definitely a supplementary part of a bigger challenge we face.
I accept, as the Minister said, that maybe progress is being made on this matter in another place on another Bill. That Bill will probably be resolved before we come back on Report so we will watch what happens in the other place in some detail. If it is are not able to resolve it, maybe we will be—so we could return to it at that point. In the meantime, I beg leave to withdraw the amendment.
Amendment 71 withdrawn.

Amendment 71A

Moved by Lord Stevenson of Balmacara
71A: After Clause 26, insert the following new Clause—“Independence of the British Board of Film Classification(1) The BBFC is to be a body corporate which is independent from the Government.(2) All appointments to the BBFC are to be subject to fair and open competition.”

Lord Stevenson of Balmacara: My Lords, we spent a considerable amount of time earlier in Committee on the question of the powers that would be allocated to any regulators appointed under the Bill. We did not spend much time on who the regulators would be, although some concerns were raised. However, over the weeks and even today, we have increasingly gathered that the Government’s intention is that the British Board of Film Classification, the BBFC, should be given a major role in the work discussed in this particular part of the Bill.
I will start with the report of the Delegated Powers and Regulatory Reform Committee, which has already been extensively referred to in the debate. It raised questions about what the position would be of any regulator appointed under the powers being taken in the Bill. It said, for example, that the age verification regulator—without naming that regulator—will have powers including,
“to require the provision of information … impose substantial civil penalties … take steps to direct internet service providers to block access to material … and … publish guidance”.
Of course, there is a quite a lot in the report that we have already discussed about how and under what conditions a body such as the regulator that will be appointed should be able to publish guidance, particularly if it is on behalf of the Secretary of State and has not been subject to discussion within Parliament.
Without having any expert knowledge of the work of the committee, I think that, had they known directly who the regulator would be, they might also have raised the issue in my amendment: the status and constitution of the body that is likely to be appointed. I assume that the comments made by the Minister earlier in this Committee session that the BBFC is to be appointed will be carried forward in due course. If I am wrong, obviously the points I make are still valid—although they may apply to a different regulator of a different nature.
The issue I want to pick up comes in paragraph 15 of the DPRRC report, which talks about a memorandum exchanged between it and the department in relation to the powers that would be applied to the regulator. It starts by saying where those powers are found: in Clause 17. It explains that the department feels that it is important to retain flexibility as to who is to be appointed to ensure that the right person or persons are appointed as a regulator. Of course, that point has probably now been overcome by time. It also makes the point that the functions could be regulated. Indeed, we had earlier recommendations that suggested quite persuasive arguments for the regulatory burden to be carried by more than one body. I hope that we will be able to make progress on this as we move through the Bill.
It is clear that if the regulator is to be the BBFC, the work of which is really the basis for the classification system that will be relied on in the legislation, it has a designation to do only part of its work under the Video Recordings Act 1984. It is important to pause here. The amendment that I am putting forward asks the Government to think hard about the correctness of a decision to appoint as a regulator a body that is only partially covered by statute at present. Does the Minister think it right that a private company over which the Secretary of State has limited powers in relation to who is appointed to that body should take on the sorts of responsibilities on civil penalties and the blocking of activity, as well as regulatory functions?
As the amendments suggests, does he not think that it might be more appropriate to look carefully at the body that takes on these responsibilities and to propose, as I do, that it should be either a body corporate or subject to more extensive powers of direction as to who is appointed and how any appointments are made? If that were the case, we could have more confidence in the ability of that body to make the right decisions in relation to all the functions that it has, which extend quite widely, and in particular to age verification, which is the subject of the Bill.
The British Board of Film Classification is a private company. Its number is 00117289. I checked today on the company’s register and, limited as the information is, it is quite revealing. It was first incorporated on 17 August 1911. So for nearly 107 years it has been a  monopoly operator in a private capacity, acting in some senses on behalf of the Government in some of its functions. As I said, there are statutory functions in relation to video and now DVD, but none to any great extent in relation to film classification, which is the basis of the work that is being carried on in the Bill.
It is well known that, in its original form, the BBFC was called the Incorporated Association of Kinematograph Manufacturers Ltd. It was created by the then manufacturers of projection equipment to protect the investment that they made in cinemas up and down the country against the watch committees, which had sprung up before but were now displaying an active concern about the impact of films on the morals of the population. This still exists. Technically, films are licensed for exhibition in the United Kingdom only through the local authorities. They normally take the advice of the BBFC. That was a clever move by the manufacturers of the equipment, which was at risk, to ensure that they stepped in ahead of the possibility of moral outrage by creating a situation in which they said and alleged that people would not be shocked by the sorts of thing that might cause alarm and despondency around the country. At that stage they could not have anticipated that Life of Brian is still banned in Glasgow—I think that I am right in saying that. That may or may not be of interest to anybody in the Committee, though perhaps it woke your Lordships up a bit. That is the kind of thing that can come from this rather unfortunate arrangement.
I will recap slightly. This private company last year made a profit of approximately £1.5 million on a turnover of £5.4 million. It owns freehold property not a million miles from here worth quite a lot of money. It has a board appointed by itself and a membership that is not disclosed in the company’s records. It operates in an area of considerable complexity and certainly some moral concern—and it is about to be given additional statutory responsibilities. Those are the main points that I want to make in this amendment.
I do not know whether what I propose in this amendment is right. It is an issue that should be thought carefully about before we move further. For instance, within the BBFC structures at the moment there is no appeal system. The regulatory functions of the Secretary of State are limited; they are mainly related to video and not to film. The powers that are about to be referred to it are mentioned by the Delegated Powers Committee as being of concern, so we need to find a way through that. We have yet to see how that will happen because we have not yet had the Minister’s response. I beg to move.

Lord Paddick: My Lords, I support the amendment but not necessarily for the reasons articulated by the noble Lord, Lord Stevenson. Our concern is that if the Government started to appoint members of the British Board of Film Classification and therefore it was not independent of government, we would have a situation in which the Government would potentially be involved in deciding which films or material should be censored or not, which is not a path we would like to go down, particularly in the current climate of populism and the historical issues that that raises.

Lord Arbuthnot of Edrom: My Lords, the noble Lord, Lord Paddick, has just given the speech that I was rather expecting the noble Lord, Lord Stevenson, to give. The amendment suggests that the Government should be completely out of the running of the BBFC, yet in his very interesting and important remarks, the noble Lord, Lord Stevenson, said that he was a bit concerned that the Government should think it right for this private company, over which the Government have very little power, to have such responsibilities.
The noble Lord, Lord Stevenson, was right to say that the current position is that the BBFC appoints itself. The council of management is chosen from leading figures in the film industry; that council chooses the president and the director, and then they do this important work. If we are to change that, we need some evidence that either there is a risk of the Government interfering in these decisions or that these decisions are being got wrong in some respect. I am not aware that these decisions are being badly taken. As far as I can tell, the BBFC is doing a pretty good job, and until we are clear what regime we want to go to, I would rather leave the law as it is.

Lord Ashton of Hyde: My Lords, I am grateful to noble Lords who contributed to this brief debate, especially the noble Lord, Lord Stevenson, who demonstrated his long experience in the world of film trivia.
The BBFC is an independent, not-for-profit, non-governmental body which classifies films and videos. The BBFC operates a transparent, trusted classification regime based on years of expertise and published guidelines that reflect public opinion. It is self-financed through fees from industry for the work it carries out on classification. It protects children and other vulnerable groups from harm through its classification work, which is legally enforceable and empowers consumers, particularly parents and children, through content information and education. In addition, it is the independent regulator of content delivered via the UK’s mobile networks. Using the standards in the BBFC’s classification guidelines, content which would be age-rated 18 or R18 by the BBFC is placed behind access controls and internet filters to restrict access to that content by those under 18 on all non-age-verified phones.
Amendment 71A introduces a new clause which seeks to clarify the position of the BBFC as an organisation independent of the Government. This proposed new clause also seeks that all appointments made by the BBFC be subject to fair and open competition. I am afraid we do not agree with the noble Lord, Lord Stevenson, that it is necessary to make provision for the independence of the BBFC. The role of age-verification regulator will be one that the BBFC carries out alongside its other independent roles. We do not seek this requirement for its work under the Video Recordings Act, where BBFC officials are also designated by the Secretary of State via notification through Parliament.
The Bill sets out clearly the powers of the regulator, and where it is thought appropriate that the Secretary of State should have a role, this is made clear. For  example, in relation to ISP blocking it will be important that the Government and the BBFC work together on a deconfliction process. The Bill provides for a parliamentary procedure for the designation of the regulator, as it is right that Parliament should have the opportunity to scrutinise this important appointment. As we have already covered, the DPRRC has made a recommendation on the designation of the regulator and I assure noble Lords that we are currently considering this carefully before responding.
The other requirement in this proposed new clause is that any appointments made by the BBFC should be subject to fair and open competition. The BBFC is an independent body, and it is not the place for government to set prescriptive guidelines on its recruitment practice in a Bill. The BBFC is a well-respected organisation, as my noble friend mentioned, and has unparalleled expertise in classifying content. I have every confidence the BBFC will deliver on its aims.
With that explanation, I hope the noble Lord will feel able to withdraw his amendment this afternoon.

Lord Stevenson of Balmacara: I thank those who have contributed to the debate. I should make it very clear that I was not in any sense suggesting that the Government should take a closer or more direct action in relation to the work that we are talking about. The Minister made it very clear that the case was for an independent body. I had in mind a not dissimilar situation that arose in a Bill that the noble Lord and I debated only recently, when it was decided that an organisation set up as a private company, which was operating in the public interest, should move from that position and be given company status under a royal charter. The National Citizen Service Trust emerges very shortly from that chrysalis, and it struck me that there were parallels—the Minister is smiling, so I think he gets the point I am making.
The response was also interesting in that the Minister was making the same point that I was making, but from a slightly different direction. It is inevitable that the Government and the regulator so appointed—probably the BBFC—will have to think very closely together about these matters. I think the Minister said they had to be on a “deconfliction” basis—a new word that I have not heard before, although I think I get the message. I think it also means that they have to be of similar mind and aiming in the same direction. In time, the need to ensure that this work is done properly and effectively, in accordance with broad principles already set out in statute law elsewhere, will inevitably mean that the Government should take the steps I am suggesting here, even if it may not be appropriate yet to do so. In saying that, I am not aware of any evidence that would convince the noble Lord who spoke from the other Benches that there is need for urgent action here. I just feel uncomfortable about any body that has responsibilities of a statutory nature not being subject to statutory control. That is really the basis of this, but in the meantime I beg leave to withdraw the amendment.
Amendment 71A withdrawn.
Amendments 71AA and 71AB not moved.

  
Clause 27: Offences: infringing copyright and making available right

Amendment 71B

Moved by Lord Stevenson of Balmacara
71B: Clause 27, page 28, line 8, at end insert—“( ) In section 107 (criminal liability for making or dealing with infringing articles, etc.), after subsection (1) insert—“(1A) A person commits an offence who—(a) manufactures for sale or hire,(b) imports into the United Kingdom otherwise than for his private and domestic use,(c) in the course of a business—(i) sells or lets for hire;(ii) offers or exposes for sale or hire;(iii) advertises for sale or hire or otherwise promotes;(iv) possesses in the course of business with a view to committing any act infringing copyright;(v) installs, maintains or replaces;(vi) distributes; or(d) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the copyright owner,any article or related software which is primarily designed, produced, or adapted for, or which is primarily used for, the purpose of enabling or facilitating copyright infringement and which he knows or has reason to believe will be used (whether alone or in conjunction with another article or service) to infringe copyright.”

Lord Stevenson of Balmacara: My Lords, this moves us into Part 4 and intellectual property. We start with rather a narrow but quite important point about the way technology is moving forward in this area and the need to make sure that the statutory basis under which we look at issues relating to broadcasting and television is kept up to speed. I am joined in Amendment 71B by the noble Lords, Lord Clement-Jones and Lord Foster, for which I am very grateful. I am sure they will give more examples of and more detail on the topic that we are discussing in this group, about devices and services that infringe copyright.
These amendments look at digital TV piracy, which is a relatively new phenomenon but has come about because of the growing amount of close-to-live retransmission of broadcasts—and indeed of live broadcasts themselves—and the services that provide on-demand access to films, television series and other audio-visual content, including music. The categories are slightly different, but they are both very damaging to rights holders. Devices normally feature a mixture of both categories of services, and you can buy them readily on the open market and install them yourself, so it is a growing problem for those who control content and wish to make sure that rights holders earn from it.
These amendments suggest changing two sections of the Copyright, Designs and Patents Act. Amendment 79A relates to Section 297A and transmissions, while Amendment 71B relates to Section 107 and on-demand services. I beg to move.

Lord Clement-Jones: My Lords, as the noble Lord, Lord Stevenson, has said, we strongly support this amendment and I am grateful to him for having tabled it. I shall go into a little more detail than he was able to do in order to illustrate some aspects that very much concern the creative industries. A substantial and growing threat is posed to the creative industries by a combination of faster broadband speeds and the widespread availability of cheap plug-and-play devices offering access to infringing software. These devices can be simply plugged into TV sets, offering viewers increasingly easy access to pirated digital content. The Government’s IP enforcement strategy recognises this threat.
The creative industries are deeply concerned about the growing scale of digital TV piracy and have noted a significant increase in the levels of illegal streaming, which inevitably undermines business models within these industries and threatens investment in new content creation. Clearly, the challenge needs to be met on multiple levels, including education campaigns, use of technology, increased enforcement activity and, crucially, clearer laws which are simpler to enforce.
There are a variety of ways that users access infringing content. Typically, this involves a device such as a USB stick or small android box which is plugged into a TV set using a standard connection. The device can be “fully loaded”, meaning it has software and add-ons preconfigured, giving access to thousands of streams, or users can purchase boxes with software such as Kodi installed—an open-source software platform—and then source and configure their own illegal add-ons. The Government’s own statistics highlight the significant growth in the use of this technology, and research by the Industry Trust for IP Awareness shows worrying signs that such behaviour is becoming normalised and socially acceptable.
The scale of the problem is very significant. Listings on Amazon give the boxes a legitimacy—the Industry Trust study revealed that 44% of people assume that if they buy a box or stick from a retailer such as Amazon, it must be legal. An Amazon search for “Kodi” just yesterday auto-completed with “Kodi box fully loaded” and “Kodi fully loaded TV box with Sky Sports and Movies”. That “Kodi” search produces 4,554 results. The first listing is highlighted as an Amazon best-seller and is on offer through Amazon Prime, despite the Q&A under it saying rather different things. IPTV boxes, as they are called, are widely available, with more than 14,000 listings across 511 online marketplaces, equating to more than 4 million items in stock globally. There are more than 200,000 videos on YouTube providing a step-by-step guide on how to install and use Kodi add-ons in order to stream free TV.
Given the rapid growth of such devices, it is not unreasonable to suggest that illegal IPTV boxes could become the second largest pay-TV operator in the UK within 18 months. Despite the IP enforcement strategy identifying the problem, there appears to be a reluctance to make the law simpler and more effective. At present, law enforcement has to rely on general provisions, such as aiding and abetting offences under the Fraud Act, or encouraging offences under the Serious Crime Act. This is because the Copyright, Designs and Patents Act does not address today’s or future issues, and the  various offences in it do not include what is by far the most prevalent offence today: the supply of devices intended to commit digital piracy. A specific offence is much needed and was proposed in the other place as an amendment to the Bill.
There are examples of law enforcement agencies such as trading standards and PIPCU being unable to pursue strong cases due to the lack of an appropriate offence. As a result, despite the industry dedicating considerable resources over a long period to protecting its intellectual property through existing enforcement mechanisms, there has been insufficient success and what limited progress has been made has taken far too long. Now, a fit-for-purpose enforcement regime is needed which is kept up to date with technological advancements and new risks posed. This requires the creation in the CDPA of a specific offence relating to devices used for IP infringement.
We have been told that over the past year, the Sky security team has identified more than 100 cases involving digital TV piracy, but they have been extremely difficult to pursue through trading standards or, indeed, through PIPCU. The industry has gone to the extent of seeking counsel’s advice on whether anything in existing law adequately covers the offences involved. It is clear that, while there has been a recent successful five-week private prosecution of a complex case involving pan-European organised crime, this is not the most efficient way to deal with a new challenge. The CDPA, originally written in 1988, needs to be updated to reflect new technology and the subsequent risks posed. New legislation would help trading standards to prosecute those preloading and distributing IP devices.
I very much hope that the Minister will take this opportunity to support this important amendment.

Baroness Kidron: I too support Amendments 71B and 79A. It is perhaps worth reiterating my interests as a film maker and, therefore, often a rights holder. I share the concerns of broadcasters about the challenges of piracy and the implications for future financing of original content. The noble Lord, Lord Clement-Jones, has done justice to that point.
This is also a generational issue, as 11 to 15 year-olds are the biggest users of these devices, which are plugged directly into television sets. Technical studies of IPTV use recently conducted by the Industry Trust revealed that they often include unauthorised apps, add-ons and advertising, and totally bypass the current systems of parental control, age rating and BBFC guidance. They are not subject to the usual protections that apply to content that we normally view on our television screens. If they can be bought from legitimate retailers and paid for through legitimate payment providers, we can hardly blame people for not really understanding that they are illegal.
Contrary to the Minister’s previous suggestion that I might like to shut down Twitter—far from it. By what other means would I know what the American President was thinking day and night? I am not a huge fan of blocking or censorship.
I beg noble Lords’ patience, as I want to go back to something that we may have gone through. It is about consistency. My argument is all about consistency. I  was disappointed by what the Minister said about social media companies, which seem to have picked up very few responsibilities this afternoon.
I wonder whether we have done the maths right. Surely, even a small slice of these huge companies with their billions of daily interactions is comparable with the large sites entirely dedicated to pornography. I have listened very carefully to the debate and wonder whether, if we had been using the word monetise rather than commercial, we might have got a little closer to where we need to go. I hope I will be forgiven for going back to Part 3, but I have risen to speak about consistency.
Given the ambition of Part 3 of the Bill, it seems inappropriate that unregulated content is being delivered to TV screens outside of Ofcom or BBFC oversight. I feel that every child, parent or carer should have access to the technical and regulatory protections while streaming content on their TV screens, should they elect to use them. The current legislative framework is out of date and does not make it sufficiently clear that devices adapted for digital TV piracy should not be sold by legitimate online retailers. As a result, children are watching content in an unregulated context. That should be a factor when considering the merits of these amendments.

Lord Gordon of Strathblane: Very briefly and anecdotally, I had a briefing session with Sky and the Motion Picture Association and, as somebody who is in the wrong age group for being able to use these kinds of things, I was absolutely appalled at how easy it is to get hold of a pirated film. I agree with the wording of the amendments; they are sufficiently vague that they will, hopefully, future-proof us. If they were too detailed, we would run the risk of having something that the criminal classes would find it all too easy to evade. I urge the Minister to give this consideration.

Lord Foster of Bath: My Lords, I, too, will be brief, but I think it is important that we keep pointing out the number of problems that are currently not being addressed. My noble friend Lord Clement-Jones has given some figures, as have the noble Baroness, Lady Kidron, and others, but it is worth recalling, for example, that in the second quarter of 2016 alone, no fewer than 51 million pieces of film and TV content were accessed illegally online, according to the Intellectual Property Office.
The case has already been made that this is damaging very seriously the commercial ability of the legal providers of content. We know from another survey that one in five people who are using this illegal approach has now either completely cancelled or cut down their subscription to legal platforms. As has been pointed out, any attempt at enforcement has so far found itself in difficulty because of the inadequacy of the existing legislation—hence the call in both Amendments 71B and 79A that we put in place a fit and proper enforcement regime and definitions of specific offences.
The noble Lord pointed to the briefing he had from Sky—and no doubt he will have heard from Sky about the number of times that it has been able to identify illegal activity going on, whether it is with local trading  standards or the Police Intellectual Property Crime Unit, but has had difficulty taking prosecutions through to the final stages. People have got away when perhaps, if we had had fit and proper legislation as is being proposed here, that would not have been the case.
Sky gave one example:
“Following an investigation … where live sport was being streamed and made available on IPTV boxes via two websites, a referral was made to PIPCU in September 2014. Search and seizures were made in July 2015 … the pirate was remanded in custody, he was later released following an appeal. Two years later, the pirate has re-opened his site with the same name but moved from .net to .biz with the Crown Prosecution Service still considering”—
how it might go about prosecution. It is for this sort of reason that we need these amendments, or something like them.

Baroness Buscombe: My Lords, Amendments 71B and 79A seek to expand the existing criminal liability for making or dealing with copyright-infringing articles and the restrictions on unlawful decoders to include the supply of devices and software—such as set-top boxes or IPTV boxes and illicit software apps or extensions—intended to be used for copyright infringement.
An amendment with the same or a similar ambition was first tabled in the other place and then withdrawn. The Government are still of the view, as they were then, that illicit streaming and the infrastructure and devices that enable it pose a very serious threat to legitimate copyright owners and service providers. We share the wish of those behind these amendments to ensure that this harmful activity is properly tackled. I agree with the noble Lord, Lord Clement-Jones, that this poses a real threat to the creative industries.
That does not mean, however, that we should jump immediately to introduce new criminal provisions to copyright law. As previously discussed in debate in another place, the Government believe that this activity is already covered by existing offences. Relevant provisions include those contained in the Fraud Act 2006, the inchoate offences in the Serious Crime Act 2007, and other provisions of the Copyright, Designs and Patents Act 1988.
In December a supplier of IPTV systems that enabled viewers to watch unauthorised content was convicted for conspiracy to defraud and sentenced to four years’ imprisonment. A second supplier received a two-year suspended sentence. This conviction shows that the courts agree that this behaviour is already illegal and must be tackled appropriately. But we recognise that court cases take time and cost money, and that this is a complex area of law where enforcement agencies may not feel well equipped to take on investigations and carry them through to prosecution. That is why we are working on a range of interventions to tackle this behaviour.
Officials at the Intellectual Property Office are working with the Crown Prosecution Service and the police to develop guidance on how the existing offences may be effectively applied, and we will be running a public call for views over the coming few weeks to ask investigators,  prosecutors and industry representatives whether they think the existing legislation is providing all the tools that are needed.
IPO officials have also been meeting intermediaries, especially those platforms where these devices are sold, and others whose legitimate businesses facilitate, however unknowingly or unwillingly, this criminal behaviour. We need to work together with a broad coalition to tackle illicit streaming, and everyone in the supply chain has a part to play. This is very much an area where we want to make progress. We believe that we are making progress on a number of fronts. The Minister for Digital and Culture committed in the other place to bring forward legislation if the evidence shows that it is needed—but that case has not been made yet.
With reference to what the noble Lord, Lord Gordon of Strathblane, said, I think it is right to emphasise that the ever-changing nature of how criminals operate means that they will quickly circumvent technology-specific legislation. We have to be careful when we talk about primary legislation. The changing way in which content is consumed means that specific legislation such as that proposed may be rendered obsolete, unprosecutable or both. I hope that with this explanation, the noble Lord will feel able to withdraw the amendment.

Lord Clement-Jones: Before the noble Lord, Lord Stevenson, expresses his view of the Minister’s response, may I ask her a few questions? She gave a bit of a “curate’s egg” response, giving with one hand and taking away with the other. At the end of the day it might be considered that a criminal offence is appropriate—but as to the call for evidence, does the Minister have a timetable that she can reveal to the House for this to take place? Will it include the role of intermediaries?
I think that the Minister can understand some of our impatience in this area: legislative opportunities to deal with this kind of infringement are few and far between, and this is a major problem. The percentage of people using this software and these boxes is rising inexorably, and that is having a very bad impact on the business models of many in these industries. We urge urgency on the Government.

Baroness Buscombe: I respect what the noble Lord has just asked, but I did say—maybe I was not clear—that we would run a public call for views over the coming few weeks.

Lord Clement-Jones: Weeks not months?

Baroness Buscombe: Absolutely—weeks. We will ask investigators, prosecutors and industry representatives whether they think the existing legislation provides all the tools needed. IPO officials have also been meeting intermediaries, and I am sure that they would welcome more such meetings to see that we get this right.

Lord Maxton: That does not include material that would not be shown otherwise on either a tablet, a computer or on television. I am wearing the tie of Hamilton Rugby Club, and I can watch the games on YouTube the week after.

Baroness Buscombe: My Lords, we are talking about taking on the seriously important issue of all illegal access. That is part of the problem with primary legislation as it is very often not otiose but an anachronism before it has even begun. So often primary legislation leads to us being behind the curve. In fact, I remember so well sitting where noble Lords opposite are sitting when the then Communications Bill was taken through the House in 2003. I remember asking officials why there was no mention of the internet in 2003 given that a certain person called Mark Zuckerberg was developing Facebook and the new world of social media. I was told privately, “Because it’s too difficult”. We are dealing with complex areas of law but I have history in this regard. I look at the noble Lord, Lord Gordon of Strathblane, who, of course, was sitting on this side of the House in those days. I think he will attest to the fact that we were grappling then with issues which almost immediately turned out to be behind the curve when that enormous piece of legislation was introduced. I hope noble Lords will accept that it is much more important to try to get these issues right than enshrine our hopes of tackling these serious problems in primary legislation in ways that will not work almost immediately.

Lord Stevenson of Balmacara: This has been a very useful exchange and I think that we have moved forward a little. I think the noble Baroness would accept that the point on which we ended was really the point that the noble Baroness, Lady Kidron, made—that there is a way of getting into this argument which tries to embrace that point about the technology. We may not have the flexibility or the ability to work the technology as well as our children and grandchildren do. It may be a generational issue. The problem may lie more in enforcement than in changing the law because, as the noble Baroness pointed out, the Fraud Act, the inchoate offences legislation and the CDP Act all contain provisions which can probably be used to tackle this issue. However, there is a lack of fit with that movement forward and the technology and the use being made of it by younger generations who do not see the issue in quite the same terms as we do.
Intellectual property as a business model is not well served by traditional models involving traditional economics. The whole point about a patent is that it gives you the monopoly that most of competition law seeks to remove, albeit for a limited period. Copyright is no different in that sense. This is not perhaps the time to argue this, certainly not at this stage in the proceedings, but it could be argued that by going to a “life plus 70 years” model for copyright—noble Lords who are earning money out of this should close their ears—we are probably making a mistake which future generations will want to come back to, because the incentive to invest in innovation has to be matched against the right to exploit that at some point. Arguably, life plus 70, particularly as people live longer, is probably not the appropriate model and a more restricted term, which would also be subject to additional requirements to make material available, might be the way forward. In that sense, some of this stuff might not therefore be a problem today as opposed to when we are a long way into it.
However, I welcome the investigation that the noble Baroness mentioned. The timing seems rather rapid for government; I was surprised to hear it but, if that is the case, who are we to say no to it? If the commitment is there and the Government are prepared to bring forward legislation to tackle this issue—I am sure that she said this, as I wrote it down—we could not be more happy. I beg leave to withdraw the amendment.
Amendment 71B withdrawn.
Amendment 72 had been withdrawn from the Marshalled List.
Clause 27 agreed.
Clause 28 agreed.

  
Clause 29: Copyright etc where broadcast retransmitted by cable

Amendment 73

Moved by Lord Clement-Jones
73: Clause 29, page 29, line 32, leave out subsections (3) to (5)

Lord Clement-Jones: My Lords, in moving Amendment 73 I wish to speak also to Amendment 235. It has been a longish road towards Clause 29. I seem to remember putting down an amendment similar to this clause on two previous occasions when we had considerable debate about its merits. I am delighted that Clause 29 has finally, after much debate and discussion within government and outside, seen the light of day. I welcome the Government’s saying that they are seeking to implement repeal soon. However, there is considerable concern that they may attempt to delay effective repeal through transitional arrangements for up to two years. There is a very strong view within the television industry that Section 73 should be repealed as soon as possible in order to provide certainty for PSBs and to ensure that investment by public service broadcasters in UK content is protected.
Public service broadcasters invest around £2.5 billion per year in programming, the vast majority of which is original UK content. That investment is key to the delivery of UK-originated public service content to UK audiences and to sustaining the UK’s position as the world’s second-largest TV programme exporter. Section 73 is causing considerable harm to broadcasters in the wider creative economy by providing an unintended loophole that enables companies such as TVCatchup and FilmOn to live-stream the content of PSBs and other channels online without permission. Those companies then monetise content by placing their own advertising around it, directing funds away from PSBs and from further investment in the UK’s creative economy. That directly impacts on the ability of public service broadcasters to generate legitimate commercial revenues and reinvest in the wider creative economy, while also harming the rights of independent producers who own the content. I am very much in sympathy  with the amendment tabled by the noble Lord, Lord Stevenson, which in a sense attempts to capture some of that additional revenue.
As noble Lords have debated on a number of occasions, the impact of current legislation is such that it is specifically the main public service channels, which together command the largest proportion of investment in original UK content, that are allowed to be streamed by online services without permission. I am glad that the Government have finally recognised the issue. They say that the repeal of Section 73 will also have the beneficial effect of closing the loophole used by the providers of internet-based, live-streaming services of broadcast television programmes. Of course, Section 73 was originally introduced to encourage the rollout of cable, and the Government clearly recognise that the original policy objective was met and is no longer appropriate.
The issue of cable in the UK is also extremely important. There is absolutely no justification for overriding public service broadcaster copyright to confer an advantage on one of the world’s largest cable operators. Indeed, I understand that the European Commission has launched infraction proceedings against the UK Government on the basis that Section 73 denies PSBs their intellectual property rights in their content, which are guaranteed under the 2001 copyright directive. I welcome many aspects of the Government’s approach in this respect, including their recognising that it should be possible for the PSBs to come to an arrangement for carriage of their content.
At Second Reading the noble Lord, Lord Ashton, said:
“As regards the remuneration issue from the abolition of Section 73, the Government are not seeking to set any retransmission fee arrangements”.
That is certainly movement on the Government’s part, which we very much welcome. As the noble Lord said:
“These will be negotiated in the context of the existing ‘must offer/must carry’ regulatory framework. This will mean there is likely to be some, albeit limited, value extracted in any future negotiations between public service broadcasters and Virgin Media”.
My noble friend Lord Foster teased out further clarification of the Government’s position from the Minister, when he reminded him that the Government had said they expected that,
“there will continue to be no net payments between all platform operators and the PSBs”.
The Minister replied:
“We think it should be left to the market to decide that”.—[Official Report, 13/12/2016; col. 1229.]
Again, that is progress, which we very much welcome.
The big question is, therefore: do we really need transitional arrangements? We on these Benches see absolutely no need for transitional arrangements of that kind. The Government talk about additional burdens with regard to adapting to new requirements. The IP consultation on transitional arrangements, which took two years, has closed, but transitional arrangements are completely unnecessary. The public service broadcasters already have a number of contractual arrangements for channel carriage in place with Virgin, parts of which can form a starting point for contractual discussions regarding the PSB channels. PSBs already  buy the rights for retransmission of their PSB channels on the “traditional” cable platform, so there should be no difficulties with the other underlying rights-holders. Both sides have had plenty of time to prepare for a negotiation. Delay will simply increase the loss to the UK’s PSB system. As we in this House know, the issue has been in discussion for many years; I think the PSBs first wrote to the Intellectual Property Office in 2008 to ask for the repeal of Section 73. We have spent a huge amount of time discussing it, but the industry has also spent time and money in litigation since then. We know that TVCatchup has made rather a lot of money on the back of PSB content during that period.
Repealing Section 73 as soon as possible will give PSBs the certainty to continue to invest. That is the tenor of this amendment, and I very much hope that the Government will accept it and repeal Section 73 without delay, so that the beneficial consequences I have outlined will occur. I beg to move.

Baroness Garden of Frognal: I must advise the Committee that if Amendment 73 is agreed to, I cannot call Amendment 73A by reason of pre-emption.

Viscount Colville of Culross: My Lords, I declare an interest as a director and producer of television programmes for public service broadcasters. I have put my name to Amendments 73 and 235 because I want the public service broadcasters in this country to benefit as soon as possible from the repeal of Section 73. I also support Amendment 73A, which seems a very sensible use of any money the PSBs might garner. The question of whether there should be a transitional period after the repeal of Section 73 seems to revolve around the issues of whether underlying rights need to be worked out as part of the retransmission negotiations and whether it will take time to introduce a new structure for negotiating licensing arrangements between PSBs and cable providers.
At the moment, all channels, including the PSB channels, routinely buy the rights for “traditional” cable retransmission if they anticipate content being carried on cable, so rights should not be a problem. Therefore, any negotiations will focus on the licensing arrangements between the PSBs and the cable providers. As there is already a structure in place for the licensing arrangements of the PSBs’ non-core digital channels, this surely cannot be an excuse to put off the introduction of a similar framework for the core channels the moment Section 73 is repealed. I, too, am saddened by the extraordinary amounts of money that seem to be made by the streaming catch-up websites, such as TVCatchup and FilmOn. The litigation appears to suggest that millions of pounds has been made by these websites and therefore lost by the PSBs. The sooner we can stop that loophole, the better.
There is a genuine need to give extra financial support to the PSBs in this country. As the noble Lord, Lord Clement-Jones, said, they are the major customers for original UK content in all genres. They are threatened by the success of BSkyB and, in the BBC’s case, threatened with a 20% cut in funding as it takes on the burden of the concessionary TV licence fees. The noble Lord, Lord Clement-Jones, said that  huge amounts of money would not be made by the repeal. However, the 2013 NERA report in the US noted that the free-to-air American broadcasters received $3.3 billion in retransmission payments, while the fees accounted for less than 3% of the cable operators’ cost. Therefore it seems that while UK PSBs will be able to raise extra money from new retransmission fees to invest in new content, the repeal will not have much impact on the price charged to the viewer. The removal of Clause 29(3) and the rapid introduction of the repeal of Section 73 will benefit both the PSB content providers and the creative industries across this country.

Lord Black of Brentwood: My Lords, I should like to say a few words in support of Amendments 73 and 235, to which I have added my name, and in doing so draw attention to my media interests as listed in the register. Like the noble Lord, Lord Clement-Jones, whose summary of the issues was excellent and which I wholeheartedly endorse, I warmly welcome Clause 29 and the Government’s decision to scrap Section 73, but I urge them to get on with it straightaway rather than having any form of transitional period, as time really is of the essence.
There is a good reason for that. No one can be in any doubt about the speed of change right across the media. A technological tsunami is overwhelming all those involved in content production, while the pace of development in the sector is relentless and punishing. It is the clear responsibility of any Government that believe in the creative economy—and this Government certainly do—to do all they can to support them through it, in this case by allowing the commercial television sector to invest more in world-class content. The question of retransmission fees is one where the Government can be a real help or, indeed, a real hindrance.
The legislation that is being repealed is nearly 30 years old. When it was put on the statute book, the fax machine was a technological novelty and there is simply no rationale for it continuing a day longer than it has to. Like the noble Lord, Lord Clement-Jones, I cannot see any reason for there to be a transitional regime, especially as all those involved have had fair warning of something which, as he said, we have been discussing since 2008. A further delay of up to two years is a lifetime in the creative industries and Section 73 is doing real harm now. If we are committed to a successful commercial public sector broadcasting industry and want to see investment in brilliant content, we should make sure that Section 73 goes as soon as the ink is dry on this legislation. Any law that is out of date and doing positive harm should go straightaway and not linger. It would be a real boost right across the whole of the UK’s creative economy and ensure that it gets an immediate benefit from this very important Bill.

Lord Stevenson of Balmacara: My Lords, this has been a good debate on a topic that has been well rehearsed in this House. I have stood at this Dispatch Box and in the Moses Room trying to support the Government in their attempts to get to the root of this issue over a number of years and I sense that we are reaching the end of a journey. At this stage I am not opposing the decision by the Government that is reflected  in the Bill to remove Section 73, but when the noble Baroness responds I hope she will be very clear about some of the thinking behind it. I do not think the issue is as uncomplicated as some other contributors to the debate have said.
In the first place, I understand that the primary reason is the abuse that has been exercised by non-cable operators in recent years, referred to by the noble Lord, Lord Clement-Jones, in relation to using Section 73 to try to gain access to PSB material for retransmission on iPad and other devices, but not on cable. Obviously, the review carried out by the Government was important, but the conclusions seem to reflect the fact that the thinking is still that the “must offer, must carry” provision will interpose itself into any negotiations about value. That is because if you must offer and there is a “must carry”, that will not make it a free and open negotiation about what the price should be. So I shall be interested to hear what the noble Baroness thinks. I understand that the Government have decided that although the repeal should go ahead, it should not result in significant fees flowing from cable operators to PSBs so, as I say, I should like to know what the thinking is on that.
While I agree with the way the Government are going forward, I worry about the risk of blank screens. If negotiations are to take place but result in a failure to agree, a very large number of people who have signed up in good faith to cable channels might not be able to watch the programmes that primarily drove them to sign up; that is, those of the PSB channels. In that sense it is important that we get absolutely the right story on that.
Our Amendment 73A, which I am delighted to hear is supported by the noble Viscount, Lord Colville, the feeling is that if money is to be paid for carrying this material, it is important that it should be recirculated into original British production and not used simply to repay shareholders and others.

Baroness Buscombe: My Lords, I thank all noble Lords who have taken part in this important debate on the issue of retransmission fees. A number of noble Lords have tabled amendments urging the Government to get on with the repeal of Section 73 as quickly as possible.
The Government, through the Intellectual Property Office, consulted on the technical aspects of the repeal, including on the question of a transition period. The Government will, hopefully very shortly—and I say that with some strength—be publishing their response to this consultation, and I believe that the noble Lords will find this response enlightening and helpful. I therefore suggest that we return to this issue on Report, where I can fully set out the details of how the repeal will be conducted.
The noble Lord, Lord Stevenson, also tabled an amendment that would require any new fees which may flow to the public service broadcasters to be reinvested in original British content. I believe it is premature to legislate on this issue. We need to see how this new market develops after the repeal of Section 73. The British broadcasting landscape, with  its steady flow of high-quality output, is envied around the world. The public service broadcasters are already pulling their weight here and face content requirements set by Ofcom. I do not believe that it would be necessary or desirable to legislate in this area that works so manifestly well for British audiences.
Clause 29 will repeal Section 73 of the Copyright, Designs and Patent Act 1988, which currently provides that copyright in a broadcast of public service broadcasting services—and any work in the broadcast—retransmitted by cable is not infringed where the broadcast is receivable in the area in which it is retransmitted. In effect, cable TV platforms are currently not required to provide copyright fees in relation to the core public service broadcaster channels. Last year, the Government consulted on the repeal of Section 73 and the balance of payments between public service broadcasters and TV platforms. The conclusion reached was that Section 73, as noble Lords have said tonight, is no longer relevant.
Today, there are a wide variety of platforms which ensure that virtually everyone in the UK is able to receive public service broadcasts. Following digital switchover, completed in 2012, digital television services are now available for over 99% of consumers through a combination of digital terrestrial television, satellite and cable platforms. The cable market has now moved from a large number of local providers in the 1980s to one big provider and a few—very small—local platforms, and from 130,000 subscribers to over 4.5 million to date. The Government are satisfied that the objective of ensuring that public service broadcast services—as well as other TV services—are available throughout the UK has been met, and therefore Section 73 is no longer required to achieve that objective.
Moreover, the repeal of Section 73 will close a loophole used by providers of internet­based live streaming services of broadcast television programmes. These providers are relying on Section 73 to exploit PSB content by retransmitting channels and selling advertising around the service, without any benefit flowing to the PSBs.
I hope that, on that basis, noble Lords will feel able to withdraw their amendments.

Lord Clement-Jones: My Lords, I thank the noble Viscount, Lord Colville, and the noble Lord, Lord Black, for their comments and support for these amendments.
The noble Viscount, Lord Colville, talked about underlying rights and of course, there should not be any anxiety about whether these have been obtained sufficiently for retransmission. Channel 4 tells us that it has a multiyear contractual arrangement in place with Virgin Media for which all the rights are cleared, so there is no impediment. The noble Viscount also made the point that the money involved in retransmission fees is a large amount for public service broadcasters but relatively small for cable operators. That is another factor.
The noble Lord, Lord Black, stressed the point about time being of the essence. I am delighted that the Minister responded to that, because we are in a context where the creation of world-class content to  be competitive on the world stage could never be more important. He described further delay of two years as being a lifetime in this industry. That is absolutely true.
In the circumstances, and compared with many ministerial responses, I thought the Minister’s response extremely positive. I do not think I have ever had such a tantalising response about revealing all on Report. That is quite something.
I may be getting this wrong and the Minister can correct me, but I assume there will be some sort of revelation on Report about the timetable. I am perfectly happy to table a probing amendment to get the full benefit of her response on timing, but if she is going to table an amendment that would move things towards the kind of timing we are looking for in this amendment, as a result of the technical consultation finally being determined by the IPO, I will not quarrel with that. I am very happy to suspend judgment, but a nod is as good as a wink in Committee. If the Minister would like to say anything further about what precisely she meant by what she might do on Report, I am open to suggestion.

Baroness Buscombe: My Lords, I will not be tempted at this stage, but I repeat that, when we get to Report, I think noble Lords will find my response enlightening and helpful.

Lord Clement-Jones: My Lords, that is even more positive than the first time around. In those circumstances, we will suspend judgment. I beg leave to withdraw the amendment.
Amendment 73 withdrawn.
Amendment 73A not moved.
Clause 29 agreed.

Amendment 74

Moved by Lord Clement-Jones
74: After Clause 29, insert the following new Clause—“Remote e-lending(1) Section 5 of the Public Lending Right Act 1979 (citation, etc.) is amended as follows.(2) In subsection (2)—(a) in the definition of “book”—(i) after “(an “audio book”)” insert “which has been licensed by the publisher on agreed terms for library lending”,(ii) after “(an “e-book”)” insert “which has been licensed by the publisher on agreed terms for library lending”;(b) in the definition of “lent out”, for paragraph (b) substitute—“(b) includes communicating by means of electronic transmission to a place other than library premises”.”

Lord Clement-Jones: My Lords, I am very conscious of the time and I will try to be as brief as I can. The amendment is designed to amend the Bill to extend the public lending right to remote e-book lending.
The way we access books is increasingly changing as technology offers new ways to access the written word. Libraries are now lending many e-books: 2.3 million  e-book loans were made in 2015 alone and the figure in 2016 was more than 3 million. But authors are not being remunerated for those loans, despite the Government having committed in principle as long ago as March 2013 to extending PLR payments to e-books when a suitable opportunity arose.
The public lending right allows authors to be fairly paid for each loan when their work is lent through public libraries. It is designed to balance the social need for free public access to books against an author’s right to be remunerated for the use of their work. The scheme provides authors with a modest payment of around 7p each time one of their books—written or audio—is borrowed from a public library. More than 22,000 writers, illustrators, photographers, translators and editors receive PLR payments each year under the Public Lending Right Act 1979 and subsequent amendments. There is a minimum payment threshold of £1 and a maximum of £6,600. Although this does not replace the royalties authors would receive if their book had been purchased by each borrower, PLR provides a significant and much-valued part of many authors’ incomes, particularly for authors whose books are sold mainly to libraries and for those whose books are no longer in print but are still being read.
While the Digital Economy Act 2010’s extension of PLR to audiobooks was a useful and overdue reform—I remember well when we passed it—the extension to on-site loans of e-books was nugatory, as no such loans are made. By contrast, remote e-book lending has increased significantly and is increasing much faster than physical lending, particularly since reduced opening hours and the regrettable extensive library closures that the Government have taken no action to prevent mean that it is more and more difficult for readers physically to visit a local library.
Writers are keen to see the Government develop the public lending right to reflect modern media. I should stress that even though the precise wording of the amendment is not agreed across the board, its spirit is strongly supported by a range of bodies, including the ALCS, CILIP, the Booksellers Association, the Society of Authors, the Association of Authors’ Agents, the SCL Leading & Managing Public Libraries and the Publishers Association. So it has extensive support in principle.
The amendment would amend the Digital Economy Act to ensure that remuneration is received by writers for remote e-lending at the same rate per loan as for physical books. It is vital that authors receive remuneration for loans of their works, irrespective of format. The principle of remuneration that enables authors to work should not be unfairly obstructed by technical and technological change. I know that Europe is not fashionable in some quarters, but a recent opinion of the Advocate-General relating to a case on rental and lending in respect of copyright works currently before the Court of Justice of the European Union supports this view. He said:
“The lending of electronic books is the modern equivalent of the lending of printed books”.
This removes the Government’s previously expressed concern that such a change may not be compatible with the copyright directive—it clearly is.
The ability to access e-books facilitated by public libraries is a service valued by the public, and remuneration for public lending is a requirement of European law under the rental and lending directive. The current situation where millions of e-book loans receive zero remuneration is unlawful and creates significant prejudice to writers. It also places libraries in a position where works lent regularly may infringe authors’ rights.
The changes needed are achieved simply by taking measures to amend the Digital Economy Act 2010 by removing Section 43(2)(b), which sets remote loans outside the definition of lending under PLR. It would also be necessary to add a sentence to make sure that the commercial market was protected and that e-lending was put on a par with physical lending. The jargon in the trade, used by the Sieghart report which recommended that PLR be extended to remote e-lending, is “frictions”—which basically are the conditions under which digital books can be loaned to one reader at a time, just as with a physical book.
Other conditions are that a digital copy of a book can be loaned only for a limited period and that digital copies of books should be deemed to deteriorate, ensuring their repurchase after a certain number of loans. Those conditions are broadly accepted by the industry, but there was no desire to incorporate them in primary legislation so that they might be taken on board in the commercial arrangements made between publishers, authors and libraries.
The cost of this measure would be negligible, but the principle is extremely important—as was recognised by the Government in 2013. I hope that they will take this on board, because it is long overdue. It would do proper justice to our authors and writers. I beg to move.

Earl of Clancarty: My Lords, I apologise for not having spoken at Second Reading. I want, however, to speak to Amendment 74, to which I have put my name, and to Amendment 79B.
I very much support Amendment 74, in the name of the noble Lord, Lord Clement-Jones, although I am delighted that there is now a firm agreement between the interested parties—including CILIP, ALCS and the Society of Authors, among others—for an amendment which is almost but not quite the same as Amendment 74. I hope that this tweaked amendment, which clarifies the nature of what is being loaned, or an amendment equally acceptable to all parties, can be brought forward by the Government and accepted on Report.
The last study into earnings commissioned by ALCS, published in 2015, found that the median income for professional authors was only £11,000, with authors sometimes earning nothing in a year. PLR, while being a modest payment—as the noble Lord, Lord Clement-Jones, has pointed out—of about 7p a book, can therefore be a significant part of the income for many authors, as well as illustrators, photographers, translators and editors. The carefully set cap of £6,600 on individual earnings from PLR means that there is a fair distribution of the pot without inordinate benefit for the high earners. Also, in his 2013 review on e-lending William Sieghart says that,
“for writers, the extension of PLR to the digital and audio world would allow for much more accurate financial recognition for the borrowing of their books”.
PLR is a legal and, I believe, a moral right, which in the modern age should be applied to the digital format as much as the physical. Particularly considering that over 3 million e-book loans were made in 2016 alone, removing the anomaly of the absence of PLR for the remote e-lending of e-books and audiobooks cannot come a moment too soon. Indeed, Matt Hancock said in the other place on 28 November last year that the Government will,
“bring forward legislation as soon as possible”.—[Official Report, Commons, 28/11/16; col. 1341]
This followed the European Court of Justice’s ruling that e-lending is allowable under the “one copy, one user” principle, removing a final barrier to a go-ahead. This is the perfect opportunity to introduce PLR for e-lending, and in this Bill an appropriate place to do so. The cost of introduction would be low. There will be no better chance, so I hope that the Government will support this.
Amendment 79B would remove a parallel anomaly. The Society of Authors rightly argues that e-books should be VAT exempt in the same way that print books are—for the reason that VAT on either would be, or is in the case of e-books, a tax on knowledge. The Society of Authors say that VAT on e-books is,
“a barrier to education and research, to adult literacy and to book sales in general”.
Adult literacy, in particular, urgently needs to be encouraged in every way possible, and this is one way to do so.

Lord Arbuthnot of Edrom: My Lords, conscious as I am of the time, I shall simply say that I hope that the Minister will be able to respond positively to this for the very good reasons given by both noble Lords who have just spoken. It is a matter of natural fairness; it reflects the convergence issues which have been spoken about in this Committee already; it reflects the technological tsunami that my noble friend Lord Black has spoken about; and it reflects what the Minister Matt Hancock has said in another place.

Lord Maxton: My Lords, I too support this amendment, but—there is a “but” to it—there are of course two types of e-books. There are those physical books which have been transferred over and copied into an e-system, but there are also increasingly a number of authors who write an e-book directly; they do not publish them at all in written form. I am not sure that this amendment takes account of the fact that there are increasingly these two different types of e-books.
Secondly, the fact is that Amazon which, rightly or wrongly, is the major contributor to the e-book revolution—I have a Kindle in my own pocket, which I read, and I have never picked up a book since I bought it—does not take part in the British national library system at all, as far as I am aware, although it does in America. Increasingly, Amazon is setting up its own lending system, where you can borrow an e-book from Amazon for a relatively small sum of  money. You can only borrow it for three or four weeks at a time, but you can borrow it directly from Amazon. I have just a quick question to the Minister. Is there any progress in terms of Amazon becoming part of the system? I gather that one of the problems is that it uses a different type of e-book to the one that is used by the public libraries in this country.

Duke of Somerset: My Lords, I intervene briefly to support this amendment, which seeks to rebalance the need for public access to all types of books against authors’ rights to some modest payment for their work. The PLR gives authors a small income where their books are sold mainly to libraries. The main point is that the PLR was extended to audiobooks in the 2010 Act for on-site loans but the need here is to extend it to remote loans, an area quickly increasing in popularity where items are downloaded to a computer situated away from the library.
We heard that zero remuneration is now illegal after the European Court of Justice ruling last November, so I expect that the Minister will have no difficulty in accepting this simple but important amendment. However, that ruling also drew attention to the difficulty of ensuring that only one copy is downloaded and that after expiration of the lending period no further listening can be enabled. Could the Minister indicate how this might be enforced or will it probably just be ignored?

Lord Stevenson of Balmacara: My Lords, briefly, I apologise to the House for the brevity of our Amendment 79B. We ran out of time and did not have the skills or ability to write an amendment that should properly have been in the Budget. We also lacked the temerity to do that. It is an aspiration not a probing amendment; it does not even qualify for that. It is a flag-waving exercise as we ought to think harder about the tax on knowledge. As the noble Earl, Lord Clancarty, said absolutely rightly, it is ridiculous that we believe that books in physical form somehow transmit knowledge and are worthy of having a VAT-exempt regime but when they are downloaded they must be subject to VAT. That seems unfair. We support Amendment 74 in the name of the noble Lord, Lord Clement-Jones, and look forward to hearing the responses from the noble Baroness.

Baroness Buscombe: My Lords, I thank all noble Lords for this important debate and for this proposed new clause. It seeks to extend the public lending right to include remote lending of e-books and e-audiobooks by public libraries. This would allow authors of these to receive payments from the public lending right fund, as they do for public lending of printed and audiobooks. It would also amend the definitions of e-books and e-audiobooks so that these works could be lent by public libraries only if they have been licensed by publishers on agreed terms for library lending.
The Government support recognising authors for e-lending by libraries. We committed in our manifesto to work with libraries to ensure the public can access e-lending, and to appropriate compensation for authors that enhances the public lending right scheme. As the Minister in another place confirmed, we intend to legislate to extend the public lending right to include  remote e-lending. In response to the noble Lord, Lord Maxton, I say that our intention is to include all e-books regardless of technology.
This proposal is supported across the sector, including by libraries, authors, publishers and booksellers. I am therefore pleased our commitment is also supported by noble Lords in this House. Public libraries increasingly provide e-lending to support reading and literacy in response to the needs of their communities. Most library loans remain of printed books, with over 200 million such loans in Great Britain in 2015-16—so not everyone has given up the printed word, as has the noble Lord, Lord Maxton. However, e-lending is growing, with 4 million e-book and 1 million e-audiobook loans in Great Britain in the same period.
In considering how to legislate to extend the public lending right to include e-lending, we are engaging with representatives of authors, libraries, publishers and booksellers to understand their views. A number of these have raised points that need careful thought before the Government table their own clause.
One point made by representatives of authors and publishers is that an amendment to the legislation should include protections for the commercial market. The proposed new clause seeks to do this by specifying that e-books and audiobooks could be lent out from public libraries only if they had been licensed by publishers on agreed terms for library lending. However, others had raised concerns about whether such a provision might impact on public libraries’ ability to acquire and lend e-books.
This is an important issue. Officials have therefore met sector representatives to allow us to consider carefully the views and decide on the appropriate way to proceed with our commitment. I understand that the discussions in recent days have been promising and that the respective parties have been considering whether they can agree a settled view on the issues. We want to continue to work together to support a strong book sector that helps promote opportunities for reading and learning by the public, so we intend to table our own proposals for the necessary legislative changes as soon as possible. We will carefully consider these views in deciding how to proceed. I hope therefore that noble Lords will not press this proposed new clause.
Amendment 79B requests that e-books be exempt from VAT. Issues affecting taxation are a matter for the Chancellor of the Exchequer. It would therefore be inappropriate to include this amendment in this Bill. There are other difficulties, however, in accepting such an amendment. VAT is an EU-wide tax and is applied by member states within agreed structures. While we remain in the EU we are bound by our international obligations. This amendment would cut across those obligations in respect of VAT. EU VAT  law, agreed unanimously by member states, currently specifically requires the standard rate to be applied to all electronically supplied services. This includes e-books, which are services, not goods. Because of this, if we accepted the amendment we would be in breach of our obligations. To make the change proposed in this amendment a change of EU law will be necessary, supported by all 28 member states. While a proposal is currently on the table there have been a variety of different reactions from member states and no unanimous agreement. I hope that the noble Lord will therefore not move his amendment.

Lord Clement-Jones: My Lords, I thank those who have taken part in the debate. The noble Earl, Lord Clancarty, has throughout been a doughty campaigner for the arts and for authors. I also thank the noble Lord, Lord Arbuthnot, for his contribution, and the noble Lord, Lord Stevenson, in particular for an amendment that we would all support if only it were practical. Who knows? There may be some silver lining to Brexit at the end of the day. I do not think that that is quite substantial enough for many of us but it is certainly a little glimmer. I thank the noble Duke, the Duke of Somerset, as well. Of course we always bow to the superior technological knowledge in these matters of the noble Lord, Lord Maxton. I agree with the Minister: I am still an aficionado of the printed book, and am one of the digital book. There is a place for both in one’s library.
I welcome what the Minister said. In a way she performed a political ju-jitsu on us by thanking us for supporting her government line on this, which I thought was magnificent. I accept that it is in the Conservative manifesto. The Minister in the Commons pledged to come up with a solution to this. All that we have done really is to give the Government a bit of a push today. This wording is not the agreed wording. Agreement was reached, at the final hour—not in time to include in Committee today—between the various parties involved, particularly CILIP. As the noble Earl, Lord Clancarty, said, I am delighted that there has been agreement reached between the parties and the wording about which I have been told will perhaps be the wording to which the Minister will return, having performed her ju-jitsu at Report. Perhaps I have her in an armlock now to come back at Report with a suitable amendment. In the meantime, I beg leave to withdraw the amendment.
Amendment 74 withdrawn.
House resumed.
House adjourned at 6.59 pm.